Collateral Consequences



In the fall of 2006, 10-year-old Casey Harmeier was clowning around with friends in the hallway at school when he was dared to pull the plastic cover off of a fire alarm.  When he did so and an alarm sounded, he was arrested and taken to juvenile detention. His father, who worked for the school district, was not notified of his arrest until four hours later.  While Casey was initially charged with a felony offense, media attention and the ensuing public outrage eventually led to dismissal of the charges. But the trauma caused by the arrest was clear: in a journal entry after the incident, Casey spoke of the stigma of being arrested, saying he felt like a “disease” and a “vile monster.”  In the same entry, Casey said he was scared every time he “left his parents’ sight.”

This incident, and others like it (including the arrest of a sixth-grade girl for drawing a heart and writing “I love Alex”  in baby blue sharpie on the wall of her school’s gym) led to a series of bipartisan reforms at the Texas Legislature, meant to ensure that students would not face the same harsh consequences and ensuing trauma that Casey faced for what was age-appropriate misbehavior, rather than criminal behavior.

Texas’ Bipartisan Movement Away from Zero Tolerance

In addition to the research-based policies and practices implemented by schools and districts across Texas, over the past several legislative sessions important statewide reforms were adopted that ended harmful zero tolerance policies and pushed school districts to move away from criminalization and exclusion as responses to student behavior:

85th Legislative Session (2017):

House Bill 674 ended out-of-school suspensions for pre-K through 2nd grade students for most behaviors. The bill also recommended that school districts adopt age-appropriate, research-based alternatives to classroom removals so that students’ needs could be addressed appropriately, rather than punished and ignored.

84th Legislative Session (2015):

House Bill 2398 decriminalized the offense Failure to Attend School (truancy), a Class C misdemeanor that led to the prosecution of more than a hundred thousand Texas students every year. Recognizing the harms of forcing children as young as 10 into the criminal justice system and not addressing the underlying issues that can lead to chronic absenteeism, the legislature adopted a civil court process designed to apply non-criminal consequences and provide meaningful supports to students and families.

House Bill 2684 requires youth-focused training for all police officers that work in school districts with more than 30,000 students. Legislators acknowledged the need for law enforcement officials who have regular contact with students to be trained in topics like de-escalation techniques and the basics of adolescent development so that they do not rely on harsh and inappropriate responses like arrests and citations.

83rd Legislative Session (2013):

Senate Bill 1114 eliminated the offenses of Disruption of Class and Disruption of Transportation for behaviors committed by a student on their home campus. These were two vague, broad Class C misdemeanors for which students were commonly ticketed in their schools, often for very minor, age-appropriate behaviors.

Senate Bill 393 changed many processes related to how children are charged with fine-only offenses (Class C misdemeanors). Among other reforms, the bill ended the practice of ticketing students for Class C misdemeanors in schools, requiring instead a more formal complaint process and encouraging the adoption of a graduated sanctions model in school districts in order to address the harmful practice of criminalizing school-based behaviors.

82nd Legislative Session (2011):

House Bill 968 eliminated “persistent misbehavior” as a reason that a child could be expelled.

House Bill 359 & Senate Bill 1489 eliminated ticketing of students in sixth grade and younger for school-based nonviolent misbehavior, and eliminated ticketing of students under 12 for truancy and allowed ticketing of older students only as a last resort after other measured failed.

81st Legislative Session (2009):

House Bill 171 required school districts to consider the mitigating circumstances included in HB 603 in 2005 (described below), making the language mandatory rather than discretionary.

80th Legislative Session (2007):

House Bill 278 repealed a statutory provision that allowed school districts to ticket students for a Class C Misdemeanor for any Student Code of Conduct violation, even if the violation was not also a Penal Code offense.

House Bill 426 required the Texas Education Agency to develop minimum standards for Disciplinary Alternative Education Programs (DAEPs).

79th Legislative Session (2005):

House Bill 603 allowed schools to consider four mitigating factors before they remove a student from class for challenging behaviors: 1) self-defense; 2) intent or lack of intent at the time of the conduct; 3) the student’s discipline history; and 4) a disability that substantially impairs the ability of the student to appreciate the wrongfulness of their conduct. While the list of mitigating factors is not exhaustive, the legislature clearly recognized that taking a quick, zero tolerance approach to discipline ignores the circumstances that provide a more nuanced understanding of students’ behaviors and the most appropriate ways to address their needs.

Today, the tragic school shootings in Parkland, Florida and Santa Fe, Texas, so close in time to each other, present an opportunity to either move Texas further toward research-based school discipline policies, proven to better ensure school and student safety – or, conversely, to move state and local policy backward, with regressive responses that are understandably rooted in fear, but that do more harm than good.

There are already early indicators of the potential for Texas schools and policymakers to take a wrong turn and move back in time to the “zero tolerance” approaches that have been disproven by research and experience.  One of those indicators is the spike in charges filed against Texas students for “terroristic threat” or “exhibition of a firearm” (which does not require actual possession of a firearm), which started in the immediate wake of the Parkland school shooting and continued through the end of the 2017-18 school year.  

Media coverage and information from attorneys representing students in these cases prompted Texas Appleseed to request data from the Texas Juvenile Justice Department for these two offenses.  While it is always important for schools to follow up on any threat of violence, we heard stories from attorneys who represented children who had been arrested though they did not pose a threat, including:

  • A 12-year-old blind student who reacted to a bully by threatening him;
  • A 17-year-old student arrested and taken to jail for pulling the fire alarm at school;
  • An 11-year-old student who receives special education services and who learns in a self-contained classroom threatened to “Tase” the teachers who restrained him during a meltdown.
  • A 12-year-old student with a disability who was arrested and taken to detention for making a gun with his fingers and pretending to shoot make-believe creatures in an empty hallway at school.

Our data analysis confirms the spike in charges that we heard about anecdotally, showing:

  • A dramatic increase in referrals to Texas juvenile probation departments in the wake of the Parkland tragedy, with a 156% increase in referrals for terroristic threat, and a 600% increase in referrals for exhibition of firearms.  66% of the exhibition of firearms referrals were for threatening to exhibit a weapon, not actual possession.  
  • The spike was borne most by younger students, with a 69% increase in referrals for terroristic threat and a 762% increase in referrals for exhibition of firearms for 10-13 year-olds.
  • Black students are overrepresented in referrals, and were more than twice as likely as all other students to be referred to juvenile probation for terroristic threat or exhibition of firearms.

Though TJJD is not able to include information related to disability, anecdotal evidence also suggests students with disabilities are overrepresented in arrests.

Perspectives Regarding Students with Disabilities

by Adrian Gaspar, Disability Rights Texas

Students with disabilities are especially vulnerable to being targeted for terroristic threat arrests. During a crisis, students with disabilities can sometimes exhibit behaviors that are a manifestation of their disability, but untrained school staff can mistake them as being threatening. With thorough training and evidence-based intervention programs, schools may be able to avoid involving law enforcement when students with disabilities are involved. According to the Texas Juvenile Justice Department (TJJD) FY2016 data (the most recent published), 28.2% of students arrested were “eligible for special education” and 30.7% received moderate to high levels of mental health treatment.

Overreacting to behaviors when students with disabilities are going through these situations can cause further harm. The trauma of being referred to law enforcement resulting in an arrest can compound underlying socio-emotional issues that may be present from having a disability in the first place. In addition, students with disabilities experience higher rates of social stigma in schools compared to their peers without an Individual Education Plan (IEP). Returning to school following an arrest can add more peer victimization leading to isolation and create more mental health concerns for the student.

Schools must follow federal and state laws that require them to consider the student’s disability status when addressing concerning behaviors. The Individuals with Disabilities Education Act (IDEA) mandates that schools refer to the student’s IEP before implementing any disciplinary actions. Specifically, IDEA requires schools to carry out a manifestation determination review which evaluates the relationship between a student’s disability(ies) and behavior that is the subject of disciplinary action. Moreover, student behaviors that may indicate a terroristic threat was made could be the result of an unknown or suspected disability. Schools are required to evaluate if a student might benefit from special education services.

While schools must respond to threats of violence, media articles that our team reviewed as part of our research for this report suggest that many schools are following a “zero tolerance” policy that fails to distinguish between students who actually pose a threat and those who have no ability or intention of harming anyone.  

What is a “Terroristic Threat”?

Under the Texas Penal Code, someone can be charged with “terroristic threat” if they threaten to commit any offense involving violence with the intent to:

  • Cause a reaction to the threat by an official with an agency that addresses emergencies;
  • Place any person in fear of serious bodily injury;
  • Prevent or interrupt the occupation or use of a public place;
  • Cause an interruption in some type of public service;
  • Place the public or a substantial group of the public in fear of serious bodily injury; or
  • Influence the conduct or activities of a government entity.

The last three of these are charged as a felony offense.

What is “Exhibition, Use, or Threat of Exhibition or Use of Firearms”?

This offense is found in the Texas Education Code rather than the Penal Code. A person commits this offense if “in a manner intended to cause alarm or personal injury to another person or damage to school property,” they intentionally:

  • Exhibit or use a firearm in or on school property or on a school bus; or
  • Threaten to exhibit or use a firearm in or on school property or on a school bus, and have possession of or “immediate access to” a firearm;
  • Threaten to exhibit or use a firearm on school property or on a school bus.

The first two are charged as a felony, and the last as a class A misdemeanor offense.

As discussed below, the majority of students in Texas who are charged with an “exhibition of firearms” offense do not actually have possession of a firearm, but are instead charged with threatening to exhibit a weapon.

The Data

Texas Appleseed requested data from the Texas Juvenile Justice Department for referrals to juvenile probation for “terroristic threat” or “exhibition of firearms” for 2016, 2017, and January through May (the most current data available at the time of the request) of 2018.

From January through May of 2018, there were 1,212 referrals for terroristic threat and 259 referrals for exhibition of firearms. Referrals for terroristic threat in 2018 were nearly three times higher than they were in the same time period in 2017, and referrals for exhibition of firearms were seven times higher than they were in the same time period in 2017.

When assessing the data by school year, there is a large spike starting in February 2018 for both types of offenses, which did not occur in the previous school year.

Black students are overrepresented in referrals for these offenses, representing 24% of referrals for terroristic threat and 31% of referrals for exhibition of firearms, but only 13% of the student body population. Additionally, Black students are referred for both offenses at twice the rate of all other students. Male students are also overrepresented, accounting for 83% of referrals for terroristic threat, and 86% of referrals for exhibition of firearms.

Rate of Referrals for Terroristic Threat and Exhibition of Firearms by Race (January-May, 2018)

Most referrals for both offenses are for 13- to 14-year-olds, but the increase in referrals was the largest for 10- to 13-year-olds.  In January through May of 2018, there was a 69% increase in referrals for terroristic threat and a 762% increase in referrals for exhibition of firearms for 10- to 13-year-olds when compared to all of 2017.  

Assessed by county, Harris County had the highest number of referrals from a school-based location, accounting for 13% of all referrals for terroristic threat from a school-based location. Assessed by district, Houston ISD had the highest number of referrals from a school-based location, accounting for 5% of all referrals for terroristic threat from a school-based location.

Counties with the Highest School-Based Referrals for Terroristic Threat (January-May, 2018)

Percentages calculated out of 340 total school-based referrals.
Percentages calculated out of 340 total school-based referrals.

School Districts with the Highest School-Based Referrals for Terroristic Threat (January-May, 2018)

Percentages calculated out of 340 total school-based referrals.
Percentages calculated out of 340 total school-based referrals.

Lastly, most referrals for exhibition of firearms were for threatening to use a firearm (as opposed to actually possessing a firearm), accounting for 66% of all referrals for exhibition of firearms. Notably, there were no referrals for threatening to use a firearm in 2016 and only 5 referrals in 2017, but there were 170 referrals from January through May of 2018.

The Harms of Arrest and Court Contact 

A referral to juvenile probation can be a traumatic and stigmatizing experience for a student. Children as young as 10 years old can be removed from class in front of their peers, questioned by school administrators and police officers (sometimes without a parent present), handcuffed, and transported to the local juvenile probation facility where they are fingerprinted and questioned. Some students are then released to a parent or guardian, but sometimes students are detained, for up to two days, as they wait for a detention hearing before a juvenile court judge. Students who are 17 years old or older are considered adults, and are arrested and taken to jail to be booked.

Students who experience this type of punishment for school-based behaviors may begin to disengage from their teachers, peers, and school administrators, potentially at a time when meaningful relationships and close bonds are most needed to identify and respond to student needs. Research shows additional, long-term harms—even a first-time court appearance can increase the likelihood that children will drop out of high school. Additionally, punitive interventions, like arrest and court involvement, have been shown to decrease the likelihood of graduation by 70% and negatively impact employment and housing prospects, even years after the arrest. 

Over-reliance on arrests can also have a negative impact on the whole school.  Aggressive security measures result in alienation and mistrust which can create an adversarial relationship between school officials and students.  If students perceive school police practices as fundamentally unfair, the actions of school police can serve to trigger, not curb, misbehavior.  Relying on police to address student behavior can foster an environment that diminishes students’ views of teachers’ authority and can make it more difficult to maintain school order, safety, and academic achievement.

Research-Based Alternatives to Criminalization

Arresting students for behavior that falls short of presenting an immediate safety risk is indicative of a harmful zero tolerance approach to student behavior. There are a number of research-based alternatives that improve school safety but also show positive school- and student-outcomes.  Many of these — like Schoolwide Positive Behavior Interventions and Supports (SW PBIS) and Social-Emotional Learning (SEL) — focus on prevention, creating safer schools by improving overall school climate.  Others, like Restorative Discipline, focus on addressing the harm in a way that repairs and strengthens relationships in the school.  Many schools in Texas have adopted these models, or are in the process of putting them into place – but effective implementation can take time.

A Note Regarding Reporting Requirements in the Texas Education Code

A Texas law firm that represents school districts is advising educators that the Education Code requires reporting of a terroristic threat, and encourages them to notify law enforcement whenever a threat is made (the firm also notes that this will simplify the difficulty of interpreting the statute).

However, while Section 37.15 of the Code does require reporting, it also includes a provision that gives schools leeway for engaging in the threat assessment process first, noting that “notification is not required…if the person reasonably believes that the activity does not constitute a criminal offense.” Tex. Educ. Code Sec. 37.015(c).

Furthermore, if a law enforcement officer is part of the threat assessment team, the referral to the threat assessment team would serve as the statutorily required notification.

Another model – school-based threat assessment – is included as a recommendation in Governor Abbott’s “School and Firearm Safety Action Plan,” and targets precisely the dilemma schools confront when a student makes a threat of violence.  Particularly in the immediate wake of a school shooting, schools are understandably afraid of failing to take action, but overreacting can have dire consequences for a student. A research-based threat assessment model – implemented appropriately – allows schools to determine when a student’s behavior necessitates law enforcement involvement, and when it is instead more appropriately managed by referrals to counseling or other services.  It is a proven, pragmatic, low-cost approach to addressing threats of violence that ensures schools neither overreact or underreact. As an added bonus, the model fits nicely within a SW PBIS, SEL, or Restorative Discipline program for those districts that are already putting those alternatives into place.

This model was born out of work done by the U.S. Secret Service and Department of Education to determine how to prevent school shootings. One of the six principles that forms the foundation of the model is central to distinguishing it from a “zero tolerance” approach. According to that principle, “the central question in a threat assessment inquiry or investigation is whether a student poses a threat, not whether the student has made a threat.”

Watch this video from one Texas school district, which describes a “zero tolerance” approach to threats of violence, failing to distinguish between a student who poses a threat and a student who makes a threat.

The model relies on creation of a multidisciplinary team that consists not just of law enforcement, but also a member of the school faculty or administration, a mental health professional, and other professionals who regularly work in the school setting, such as teachers, coaches, and guidance counselors.  Perhaps most importantly – when a threat assessment is being conducted, the model suggests the team should include someone who knows the student whose behavior is being assessed. The multidisciplinary nature of the team and inclusion of someone who knows the student ensures that the context in which the behavior occurred is fully considered.  Rather than focus solely on the question of whether the student’s behavior falls within the elements of a Penal or Education Code violation, the team’s inquiry determines whether the student truly poses a safety risk.

One of the forensic psychologists who worked with the FBI and Secret Service to develop a threat assessment model for schools describes the difference between traditional threat assessment instruments and the model developed for schools:

The traditional law enforcement approach to threat assessment is focused on assassins and terrorists, but we are working primarily with kids. Kids make threats frequently when they are angry, upset, or just trying to gain some attention. In our first study, we found that the age group that makes the most threats to kill are elementary school students.  In almost all cases, students need counseling and discipline, not criminal charges. In school threat assessment, you must be careful not to over-react to student threats; the process must be calibrated to deal with kids, not adults.

The value of a research-based threat assessment model is in its ability to guide educators in distinguishing between “transient” threats, and “substantive” threats.  The difference between the two determines the consequence and response from adults:

Transient threats include a variety of qualitatively different threats that are not serious. Some examples are a student shouting “I’m gonna kill you” as a joke or playfully using his or her fingers to shoot another classmate. Another student might say “I’m gonna kill you” as a competitive statement during a game. Still other transient threats are expressions of anger that do not reflect a serious intent to harm someone, such as a student stating rhetorically “I’d like to kill that jerk” in anger but not actually possessing an intent or plan to kill anyone…Transient threats can be provocative and disruptive, but from a threat assessment perspective, they do not reflect a real intent to harm others.

In contrast to transient threats, substantive threats are behaviors or statements that represent a serious risk of harm to others…[S]ubstantive threats are characterized by qualities that reflect serious intent, such as planning and preparation, recruitment of accomplices, and acquisition of a weapon. Examples of likely substantive threats include a student threatening “I’ll get you next time” after a fight and refusing mediation for the dispute, or a student who threatens to stab a classmate and is found to have a knife in his or her backpack.

Dewey G. Cornell, Overview of the Virginia Threat Assessment Guidelines pp. 2-3 (2018).

Use of a research-based threat assessment model shows the majority of threats (70%) are transient.  A threat assessment model does not ignore transient threats, but the response would be proportional and would not call for the same response needed for substantive threats.  Even “substantive” threats may not necessitate law enforcement involvement.

Schools using threat assessments resort to expulsion or arrest in only about 1% of all cases.  Based on Texas data, this could mean roughly 15 law enforcement referrals rather than the more than 1400 already made in 2018.

A zero tolerance approach that fails to distinguish between transient and substantive threats, arresting every student who makes a threat, makes poor use of expensive law enforcement and juvenile and criminal justice system resources and unnecessarily criminalizes students.  Students may still face consequences for their behavior – but the consequence should be proportionate and aim to teach students why even a threat of violence is harmful.  In the innumerable media stories reporting arrests of Texas students in 2018, many indicated that law enforcement had already determined that the threat wasn’t substantive.

Experts in its use emphasize that a school-based threat assessment model should be part of a tiered approach to campus safety, with the primary focus on prevention and creation of healthy school climates.  The research conducted by the Secret Service uncovered the importance of Threat assessments should not supplant approaches like SW PBIS, SEL, and Restorative Justice, but should become part of a continuum that includes them.

How Many Texas Schools Use Research-Based Approaches to School Safety?

Unfortunately, the answer to this question is unclear.  The Texas Education Agency (TEA) does not collect comprehensive information about the kinds of programs that schools may be using to address safety challenges.  

However, the TEA and several of Texas’ Education Service Centers (ESCs) have information and resources for schools and districts interested in adopting research-based methods of ensuring safe and healthy school climates.

The Region 4 ESC is the Lead ESC for the Texas Behavior Support Initiative (TBSI), a state-level training initiative designed to provide SW PBIS training to school districts across Texas. The Texas Behavior Support (TBS) Network connects school districts to SW PBIS trainings, fidelity assessments, and resources, including information about starting SW PBIS programs and costs. Additionally, TBS provides information and trainings on Restorative Discipline Practices and how restorative discipline and SW PBIS can be used effectively together.

In addition to these resources, the Texas School Safety Center is offering free training to educators interested in learning more about the threat assessment model.  There are several trainings scheduled for the summer of 2018.

For more information about research-based approaches that contribute to positive school climates and increase school safety, see the Best Practices section of Texas Appleseed’s report, Dangerous Discipline: How Texas Schools are Relying on Law Enforcement, Courts, and Juvenile Probation to Discipline StudentsAnother report, published by Texans Care for Children focused on school-based supports for children affected by Hurricane Harvey, contains information about research-based strategies for supporting student mental health and positive school climates.

State & Local Policy Recommendations

The lifelong trauma and stigma of being unnecessarily arrested and charged with “terroristic threat” or “exhibition of firearms” can have a devastating impact on a student’s outcomes.  Overreacting to threats made by students in frustration or anger does little to ensure school safety and may ultimately have the opposite effect.

Texas schools have an opportunity to instead embrace a research-based approach that addresses safety concerns, avoiding the potential harm to students.  

  • In 2019, the Texas Legislature should provide funding for research-based, multi-tiered approaches to school safety that include a threat assessment model, and require school districts to indicate in their safety plans which research-based approaches their schools are utilizing.
  • Texas school districts should prioritize a tiered, research-based approach to school safety that includes a threat assessment team model.
  • Texas schools should take advantage of the free training being provided by the School Safety Center this summer.
%d bloggers like this: