After each horrific school shooting, there is a rightful public outcry to better protect our nation’s children. However, we keep turning to a solution that does more harm than good: investing in school-based police officers. In doing so, we deepen society’s existing inequalities, place the blame for violence on our most innocent residents, and further traumatize a generation already suffering from the effects of our violent society. Instead of protecting and serving our nation’s children, school police are legally shielded from accountability when they hurt them. It’s well-past time we stop throwing money at hiring more school police officers and start investing in a culture of trust between school administrators and students that will actually prevent violence in our schools.

In lieu of gun reform laws that would directly address the issue of school shootings, state and local governments across the country continue to install more permanent police presences in schools. Many are making that choice now, even though we saw officers refuse to enter the schools and defend our children during mass shootings in Uvalde and Parkland. President Biden has called for another massive investment in school policing through the federal COPS program. This is despite the fact that findings from a rigorous twenty-year research study published in the Journal of Adolescent Health prove that police in schools do not make students more safe from school shootings.

More frighteningly, L4GG has found that school police are outside the law when they mistreat our nation’s young people.

As L4GG’s research demonstrates, school resource officers (SROs) and other school-based officers have been held to a more lenient standard than their peers in the field, based on a confluence of two contentious legal standards: qualified immunity and the duty to maintain school order. Qualified immunity protects public officers from civil liability for the great majority of torts committed in the line of duty. The state interest in maintaining a safe and orderly school environment is widely interpreted in ways that severely restrict a student’s civil rights on school grounds. Together, these standards give school police, administrators and teachers nearly limitless power, while abdicating them of their responsibilities under the Constitution.

A few states are taking action to correct the vast failure of qualified immunity, but even then, students’ civil rights are rarely considered as significant as the state’s right to maintain order on school grounds, leaving families without redress for sometimes horrific injury.

Counselors, Not Cops, Stop School Violence

When a shooting occurs in any of our schools, it strikes fear and anxiety into the hearts of teachers, students, and parents in every school. But cops in schools do not address, nor prevent, that violence – the perpetrators of mass shootings in schools are, by and large, not students of those schools, but young adults. And while they are given the mandate to serve as mentors and counselors, as well as officers, SROs in one study reported viewing their largely urban schools as loci of criminality. Given their use of this law enforcement lens, SROs are not equipped to help students process their feelings in the wake of a shooting, thus sowing the seeds for that violence to spread. Over 1,700,000 students attend schools with permanent police, but without school counselors. Children are given active shooter drills, but not awareness about the roots of violence or therapeutic resources to handle their own mental health needs. High-security school environments with on-site police have a detrimental effect on child learning, as well as the counterproductive effect of making young people less inclined to respect school authority or follow school rules. We must do better to equip our students with the resources to heal, instead of turning our schools into prisons.

Cops In Schools Further Entrench Educational Inequities

A permanent police presence in schools actually makes schools less safe for the majority of our schools’ children. Instead of preventing crime, a permanent police presence in schools is correlated with harsher discipline and higher arrest rates for child behavior and the criminalization of our nation’s Black, Brown and disabled children, furthering the school-to-prison pipeline. The presence of police also interrupts their education.

Attending a school that received a three-year federal grant for school police is associated with a 2.5 percent decrease in high school graduation rates and four percent decrease in college enrollment rates. Exposure to police violence leads to persistent decreases in GPA, increased incidences of emotional disturbance and lower rates of high school completion and college enrollment among Black and Brown children.

It has always been morally imperative that we meet the needs of children historically and systemically excluded from the benefits of public education. As of 2014, when children of color together became the demographic majority of public school students nationwide, it became critical for the future of our country. Yet, there is an abundance of evidence demonstrating that children of color and with disabilities are disciplined and policed more harshly in school than other students, and that this disparate treatment has a significant negative impact on their education.

Our Kids Deserve Better

The United States cannot succeed if it refuses to meet the needs of the majority of its children. It is our duty as a nation to ensure that every child gets what they need to thrive, and that all children have access to not just an “orderly”, but safe, healthy, and nurturing school environment where they can learn and grow. As this report shows, installing more police officers in our schools does not move us in that direction - it actually destroys the fabric of trust necessary for our schools to function.

Police were first introduced to schools right as Black students began demanding equal education. While it may be hard to imagine, in 1976, only 1% of schools had a permanent police presence; by the 2017-18 school year, that proportion had swelled to 47% of the nation’s schools, with school-based law enforcement stationed at least half-time in 59% of middle schools and 68% of high schools. Despite schools generally being very safe, over the last 30 years, politicians have sold us on the need for more and more officers. Today, we have over 50,000 SROs nationwide. How did we get here?

In the early 1990s, the media began addressing school violence as a “crisis,” reporting on urban, majority-Black schools as “concrete jungles.” This obsession with school safety led news outlets to deliver near-daily coverage of shootings, such as that at Columbine High School in Colorado. Politicians like Rudy Giuliani began campaigning on promises to institute “zero tolerance” policies for disorderly conduct in schools, and “broken windows” policing in response to property damage and other minor infractions in communities. Since 1999, the federal government has responded by spending more than one billion dollars to subsidize the placement of police in schools nationwide. Much of this funding has come through federal COPS program grants originally authorized under the Violent Crime and Law Enforcement Act of 1994 (codified at 34 U.S.C. § 10101 et seq.), and first directed toward putting cops in schools in 1998. Some funds were distributed through education grants, such as those funded under the Safe and Drug-Free Schools and Communities Act, which allowed for the hiring and mandatory training of school security personnel, and passed through the state directly to school districts. But annual federal funding for police in schools is a drop in the bucket when compared to state-level funding for the same.

Numerous states provide special, separate funding for school resource officers (SROs) in schools. In the wake of the Parkland shooting in 2018, legislators in over 26 states poured over $960 million into SROs and equipment to harden schools, or fortify them against gun violence through their physical design and safety measures, like metal detectors, surveillance cameras, and protection of entrances.

Disturbingly, we know that the actual amount of state funding for SROs is likely much larger than reported, because states also give schools general funds that are not explicitly required to be used for SROs, but are still widely allocated by counties, cities or school districts to pay school officer salaries. School districts often contract directly with county sheriffs’ offices or local police departments to pay for SROs approved at the city level. With over 50,000 SROs in schools across the country, and the executive director of the National Association of School Resource Officers estimating that SROs make between $50,000 to $80,000 a year in salary costs alone, it is fair to estimate that SRO salaries alone range between $2.6 billion to $4.2 billion annually nationwide. This is in addition to the $2.7 billion in U.S. annual expenditures for school security systems.

According to the National Center for Education Statistics, during the 2017-18 school year, 72% of high schools and 67% of middle schools employed at least one sworn, armed law enforcement officer. That year, NCES reported that 52,100 of such police officers worked in 83,600 public schools. As many researchers have noted, these numbers are likely a serious undercount because of inconsistencies in data reporting and collection on police presences in schools.

When the federal government first collected data on public school enrollment in 1968, over 80% of enrollees were white; today, white students represent less than half of American school children. And yet, our schools still systematically discriminate against nonwhite students, causing them harm from preschool onward.

In public schools, children of color are disciplined in schools at a rate significantly higher than that of white students. For instance a recent L4GG report found that more than 19 states still allow the use of corporal punishment in schools, and although Black children only make up 15.1% of public school students, 37.3% of the uses of corporal punishment against students are against Black children. Similarly, the federal Department of Education Office for Civil Rights (OCR) showed that in 2018, Black preschoolers were suspended at twice the rate of white preschoolers: “Black pre-school boys received both suspensions (34.2%) and expulsions (30.4%) at rates that were more than three times their share of total pre-school enrollment (9.6%).” Suspending or expelling preschoolers is neither necessary nor effective, but it happens anyway, and the pattern of over disciplining students of color continues into kindergarten and through twelfth grade. This despite a clear and consistently-agreed upon duty on the part of school officials to protect the children in their care.

During the 2017–18 school year, Black students represented 15.1% of students enrolled in public schools nationwide, yet 28.7% of the students referred to law enforcement and 31.6% of the students subject to school-based arrest, twice their share of total student enrollment.

Black students with disabilities fared even worse during the 2017-2018 school year. Black students represented 17.7% of students receiving special education services under the Individuals with Disabilities Education Improvement Act (IDEA, the federal special education law), yet 32% of the disabled students referred to law enforcement and 35.3% of the disabled students subject to school-based arrest. According to OCR, Black students served under IDEA accounted for 2.3% of total student enrollment, but 8.4% of students referred to law enforcement and 9.1% of students who were arrested. As Golden Gate University Law Professor Jyoti Nanda writes, “For students of color, instead of a designation that attracts more resources, disability is one of the mechanisms through which they are criminalized.”

Schools that turn to harsh discipline and cops to solve behavioral problems actually might create them: new research shows that increases in school policing and exclusionary control measures predict higher, subsequent substance abuse and risk-taking behavior. The mere presence of police in schools has a demonstrable effect on children of color. Studies show that Black and Brown students and their parents feel less safe when there is a police presence in school. Their concerns are based in stark reality. Research shows that suspensions and expulsions of Black and Brown students increase as compared to white students as police presence in schools increase and that schools with police report 3.5 times as many arrests as schools without police. This risk is only magnified for Black, Brown and Indigenous students with disabilities.

Despite systematic underreporting and obfuscation, there is still shockingly widespread use of excessive force by police on children in our nation’s schools. Building on existing evidence collected by L4GG coalition ally the Advancement Project, L4GG compiled 238 times — including incidents in 45 states — that police have brutalized children in schools for offenses as minor as failing to go to the principal's office, standing on a school bus, or picking at a sign taped to a door. [Content warning on the linked news articles, as many include images, videos, and vivid descriptions of physical abuse of children by adult police officers, many of these reports are accompanied by disturbing photographs and videos of police brutalizing children, who are often less than half their size.]

Cops in schools further increase school pushout, keeping kids from graduating or going to college: exposure to a three-year federal grant for school police is associated with a 2.5 percent drop in high school graduation rates and a four percent decrease in college enrollment rates.

Additionally, permanent police presence in schools is a key part of the school-to-prison pipeline, a phrase used by the education civil rights community to describe how school policies lead Black and Brown students into the criminal justice system. Once a school has permanent police presence, minor disturbances regularly escalate from discipline to arrest and referral to external law enforcement, increasing the criminalization of school discipline.

Although having law enforcement personnel in schools was conceived as a way to protect students from rare mass school shootings, school police are concentrated in schools that are majority children of color and lead to children being arrested and brutalized over minor disciplinary issues. This despite wide evidence that the harms of excessive school policing can lead to lifelong trauma.

Although the legal profession is often disparaged as “ambulance chasers,” the ability to sue the government and its employees to end unlawful activities and to receive compensation for injuries is a cornerstone check and balance of our system of government. Without the ability to sue, we have what lawyers call “rights without remedies” — unenforceable rights that are just words on a piece of paper with no practical meaning.

Knowing this, over the years, the U.S. Congress has passed many civil rights laws granting the ability to sue. Most relevant to suing police for violations of civil rights is Section 1983 ​​of the Civil Rights Act of 1871 (also known as the Ku Klux Klan Act of 1871), which allows people to sue state or local government officials in federal court for violating their rights. For over a century, these “Section 1983” claims have been a primary enforcement mechanism to protect civil rights.

The right to be free from unreasonable search and seizure under the Fourth Amendment and the right to due process under the Fifth and Fourteenth Amendments are often implicated when government actors (e.g., police officers and school officials) take action to restrain or search people, their spaces, or their belongings. As the Supreme Court said in Tinker v. Des Moines Independent Community School District, students do not “shed their constitutional rights… at the schoolhouse gate” 393 U.S. 503, 506 (1969). Further, "the Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures … Boards of Education not excepted." West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).

Substantive due process under the Fifth and Fourteenth Amendments forbids government actors from intruding into fundamental rights “to be free from physical abuse at the hands of state actors, and to enjoy personal security and bodily integrity in an educational setting,” as applied in Webb v. McCullough, 828 F.2d 1151, 1158 (6th Cir. 1987).

However, recent Supreme Court and circuit decisions have rendered individual SROs all but immune from personal Section 1983 claims. Childrens’ civil rights are heavily constrained in the public school setting, with their freedoms of bodily autonomy, speech and privacy weighed against a school’s “substantial” state interest in maintaining a safe and orderly environment. When searched or seized in a school setting, a student may only assert their constitutional rights if the court finds it was not “reasonable,” which is a far more lenient standard than the standard of probable cause, which is used for police in any other setting. This leaves the court to perform an ad-hoc balancing test to establish which right was more significant, assessing “reasonableness” by weighing a child’s interests versus that of the state, in lieu of a fixed standard. Is a child’s right to privacy more or less reasonable than a school’s right to order and discipline? No one has established any consistent guidelines to make this determination. To add insult to injury, most courts have found that disabled students served under IDEA must first exhaust IDEA remedies before they may even file suit based on Constitutional protections.

In recent years, the U.S. Supreme Court has also eroded the ability to sue and prevail in cases where a state actor violates civil rights. Through the court-created doctrine of qualified immunity, the Supreme Court has steadily piled on the requirements to win a Section 1983 claim for the deprivation of civil rights.

To be eligible for relief from an official under this section, the Supreme Court has decided that a plaintiff must show that: (1) the facts unequivocally support that one of the plaintiff’s constitutional rights was violated, and (2) any reasonable public official in the defendant’s place would have known that they were violating a clearly-established constitutional right or statutory law for which there was court precedent.

Instead of offering specific guidance on when a right is “clearly established” for the purposes of a qualified immunity defense, the Court has stated that “existing precedent” should place the constitutional question “beyond debate.” The court’s current standard goes against its own precedent in Hope v. Pelzer, 536 U.S. 730, 741 (2002), which said the law merely had to offer “fair warning” of the bounds of the law. Today, qualified immunity relies on “a double dose of reasonableness” that is almost impossible to overcome, even in cases where officers have lacked probable cause or used excessive force.

When applied to cases alleging school-based civil rights violations, this standard dooms even those cases where the court finds the officer’s behavior unconstitutional. In the case of assault, it means only the most egregious official misconduct—that which “shocks the conscience”—will be considered arbitrary in a constitutional sense.

In E.W. ex rel. T.W. v. Dolgos, an SRO handcuffed E.W., a calm, compliant, ten-year-old elementary school student, for getting into a kicking and shoving match with another student on the school bus – three days before the arrest. The Fourth Circuit Court of Appeals found that the officer’s conduct was an unreasonable violation of E.W.’s constitutional rights. Yet, the court concluded Sheriff Dolgos was eligible for qualified immunity because there was no specific law outlining “the contours of her right” sufficiently to show that a reasonable officer would have known they were violating it, despite citing rulings from the Ninth and Eleventh Circuits on nearly identical grounds in its constitutional analysis.

In A.M. v. Holmes, the Tenth Circuit granted qualified immunity to an officer that handcuffed and arrested a student for burping and distracting her peers in school. Despite there being court precedents, the circuit ruled that she did not get “over her clearly-established-law hurdle.” The dissent noted that the New Mexico Court of Appeals’ interpretation of the law, echoed by other state courts ruling on similar statutes, should have been “sufficient to alert any reasonable officer” of the law.

L4GG has found that if an officer did violate your child’s more limited constitutional rights in school, the question of who holds the burden of proving that violation would completely depend on which federal appeals circuit you happen to live in. The U.S. courts of appeals are split over whether it is up to the person suing (the plaintiff) to prove an SRO violated a clearly established right, or whether it is just something that the officer can raise as a defense. Where the burden lies with the plaintiff, it nearly always results in a finding of qualified immunity for the school officer.

For example, recent court decisions, such as the Fifth Circuit’s in Gonzalez v. Huerta, have left legal scholars scratching their heads as to whether an officer’s conduct can ever be considered egregious enough to leave them civilly liable for a breach of a student’s civil rights. In Gonzales, the husband of a school employee was arrested for failing to provide identification upon request to police—the U.S. Supreme Court held that the exact same circumstances could not serve as probable cause over thirty years ago in Brown v. Texas. The Fifth Circuit held that because the plaintiff was arrested on school property, and neither the Fifth Circuit nor the Supreme Court had addressed the constitutionality of failure-to-identify arrests on school grounds, the law was not “clearly established.” When appealed to the U.S. Supreme Court, the Court chose not to hear the appeal, allowing the Fifth Circuit decision to stand.

This sort of absurd precedent leaves students with little, if any, legal recourse when a police officer violates their rights in school.

As the Supreme Court continues to erode the ability to rely on federal courts to protect civil rights, it is becoming more and more necessary for states and localities to step up and protect the rights of children in schools. As a number of circuits have argued, federal civil rights laws should be the floor, not the ceiling.

States currently allow lawsuits against police officers in some narrow circumstances through state laws known as state tort claims acts. But just like qualified immunity protects state employees from federal Section 1983 claims, states shield their employees, such as SROs, from lawsuits. Each state provides at least some immunity to state employees from lawsuits under state tort law. Fourteen states expressly allow state employees, such as SROs, to remain immune from state lawsuits even where they “abuse their discretion.” These fourteen states include: Alaska, California, Hawaii, Illinois, Iowa, Kansas, Minnesota, Mississippi, Nebraska, Nevada, North Dakota, and Oregon.

However, some states are making reforms to hold school-based police officers accountable when they hurt students. Within recent years, three states have approved laws that restrict qualified immunity for police officers with varying levels of applicability to SROs. The New Mexico Civil Rights Act of 2021 prohibits the use of qualified immunity as a defense against violations of the New Mexico bill of rights by any government employee. The Colorado Enhance Law Enforcement Integrity Act of 2020 also prohibits using qualified immunity as a defense against violations of the Colorado bill of rights, but only prohibits the qualified immunity defense for “peace officers,” which would apply to uniformed SROs but would likely not apply to non-deputized security in schools. The Connecticut 2020 Act Concerning Police Accountability applies to “police officers” only, which again would likely not apply to non-deputized security in schools, and is further limited to a difficult-to-prove subjective standard - whether the police officer believed that their conduct did not violate the law. A growing chorus of legal scholars are calling for the adoption of similar efforts in other states.

Additionally, in 2021, the DC Council passed legislation that includes a four year plan to dissolve the School Safety Division of the Metropolitan Police Department, and to remove the vast majority of SROs from DC public schools by 2025, becoming the first state or territory to pledge to remove SROs from schools. Although some experts argue that some special police may remain in schools, it is an important demonstrated commitment to ending permanent police presence in schools. Similarly, at the school district level there has been a growing movement for school districts to cut ties with police. According to another L4GG coalition ally, the Education Civil Rights Alliance, as of March 2021, at least 65 school districts nationwide have removed police from their schools.

L4GG researchers found examples of police brutalizing children for minor offenses in 45 states. These children deserve justice, including being able to sue the officers who abused them, and to ensure it never happens again. Every state in the nation needs a law like New Mexico’s Civil Rights Act of 2021 to protect children from violations of their rights in school, and to remove police from schools.

Sponsored by Senator Chris Murphy and Representative Ayanna Pressley, the Counseling Not Criminalization in Schools Act would prohibit federal funding for police in schools, and replace the existing funding with funding for counselors, nurses, social workers, and school psychologists. Following the lead of the DC Council by removing police from schools, is necessary but not nearly enough. Schools nationwide are underfunded by $150 billion annually. The state and local funds that fund police in schools must be used to fund programs that improve the health, safety, and educational outcomes for children in those same schools.

Over 500 organizations support removing permanent police presence from schools, including organizations that represent teachers, students, women and girls, and victims and survivors of crime, as well as racial justice organizations, disability rights organizations, LGBTQ+ rights organizations, religious organizations, organizations that represent the rights of women and girls, organizations that represent victims and survivors of crime, and many more.

Working with our coalition partners, L4GG used our network of pro bono attorneys to conduct a survey of police in schools across the 50 states, the District of Columbia, and Puerto Rico. L4GG undertook a state-by-state analysis of the laws and demographic dynamics surrounding police in schools, which is available here, including:

-The demographics of students enrolled in the state or territory;

-The relevant federal law on qualified immunity for federal claims;

-The relevant state or territory law on qualified immunity under state tort law; and

-The relevant case law governing students’ constitutional rights in school, which informs where they are less protected from police abuses than under QI.

Data collected is from state codes, Westlaw, and the 2017-18 Civil Rights Data Collection (CRDC) from the Department of Education Office for Civil Rights (OCR).

While we used the most recent federal data sources available, readers should note there were well-documented problems with its collection, notably non-compliance and delivery of incomplete, delayed and under-reported data, especially that pertaining to school arrests and law enforcement referrals. Our colleagues at partner organizations such as ACLU Florida, ACLU Pennsylvania, the Civil Rights Project at UCLA, and NYCLU have analyzed state-level data on investments in school resource officers and discriminatory patterns of arrest and referrals to law enforcement. However, these same data have often not been shared with the federal OCR, leaving a complete nationwide analysis impossible. We join our coalition partners in FedSDC and allies at National Women’s Law Center in calling for deeper investment in the collection and cleaning of this year’s data, so future studies can deliver greater insights into the impact of police presence in our schools.

Given school officers’ excessive legal protections from responsibility for the most egregious harms, it is unreasonable to continue funding police in schools. Some policymakers would see us return to placing even more permanent police officers in schools, undertaking military-style threat assessment and reporting, and “hardening” school buildings through increased use of surveillance and security equipment that infringes upon students’ civil liberties. Such recommendations are dangerous to the health, well-being and focus of our public school students, particularly disabled students of color. They are fear-driven policies. They are discriminatory. And they do not work.

It is time for leaders at the national, state, and local levels to fund proven and effective interventions to make schools more safe and effective learning environments, like stationing counselors, nurses, psychologists, and social workers. It’s beyond time to remove permanent police presence from our schools.

Mika Fernandez is the Vice President of Policy and Strategic Engagement at Lawyers for Good Government. For over a decade, she has been a civil rights attorney and activist specializing in issues of education civil rights, including as the Education Policy Attorney at the civil rights law firm MALDEF and as co-chair of the Leadership Conference on Civil and Human Rights Education Taskforce.

Khadijah M. Silver is the Senior Staff Attorney in the civil rights policy team at Lawyers for Good Government, and has spent much of their career in youth-led education advocacy, including as Executive Director of Resilience Advocacy Project.

Thank you to Dan Losen for his feedback, insights and data analysis on the disparities in school arrest and referral based on race and disability, Harold Jordan for his feedback on the report, Miriam Rollin for her feedback analyzing data and the law, Chris Scott of the FedSDC coalition for his leadership and consultation on the issue, Natalie Chap of the Dignity in Schools coalition for her leadership and consultation on the issue, Joe Spielberger, each of the law firms who participated in the research and draft reports leading to this report including Cozen O’Connor, Major League Baseball, McDermott Will & Emery LLP, Nelson Mullins, LLP, Norton Rose Fulbright, Shearman & Sterling, Sheppard Mullin, Willkie Farr & Gallagher LLP, and each of our pro bono attorneys who assisted in the research and development of this report.