By West Resendes, ACLU Skadden Fellow & Sarah Hinger, ACLU Staff Attorney

As schools begin to reopen for the new school year, students like J.W. are dreading the return to hallways patrolled by police officers who are trained and ready to detain, handcuff, and arrest students.

After being bullied in his Texas high school one day, J.W., a 17-year-old Black student with emotional and intellectual disabilities, had an outburst and tried to use a coping strategy in response — going to the “chill-out” room. This is an approach that students with disabilities use to help self-regulate their emotions and avoid escalation. When J.W. found the chill-out room occupied, he had a fallback strategy: Leave school and walk home to cool down. School officials responded by blocking his way out and radioing in the school-based police officer.

Instead of trying to de-escalate the situation, the officer pressed J.W. against a door and fired a taser gun directly on J.W.’s body until he fell onto the floor face-down. J.W. was handcuffed after 15 seconds of tasering. He was taken to the hospital and missed several months of school while experiencing intense anxiety and PTSD. In the face of these facts, a Fifth Circuit panel ruled that the tasing of J.W. was an act of school discipline that couldn’t be challenged under the Fourth Amendment. We recently filed an amicus brief in support of J.W. arguing that in dismissing his claims, the court dangerously and incorrectly suggested that students lose their constitutional protections against excessive force — including from police officers — when they enter schools.

Sadly, while J.W.’s experience was singularly horrifying, his encounter was one of many. Nationally, students of color and students with disabilities are up to two times more likely to be referred to police and arrested in schools. During the 2017-2018 school year, students with diagnosed disabilities represented 16 percent of national enrollment, but nearly 30 percent of arrests in school.

In response, communities across the country are pushing their schools to divest funding from police and reinvest funds in student mental health and other supportive services. But federal funding plays an important role — not only in actual dollar sums, but in determining which educational services are deserving of investment — and Congress must do its part. That’s why we’re calling on Congress to pass the Counseling not Criminalization in Schools Act, critical legislation that would eliminate federal funds for police in schools and instead redirect those funds to supportive services for students.

Passing the Counseling not Criminalization in Schools Act is an essential step Congress can take to make our schools safe and healthy learning environments. Federal funding has played a pivotal role in seeding and expanding the presence of police in schools. The Department of Justice’s COPS Office awarded $50 million to 160 school districts and municipalities for school police in 2020 alone. At the same time, there are 14 million students in schools with police and no nurses, social workers, or psychologists across our country.

Black and Brown students are more likely to attend policed schools. As a result, tens of thousands of Black, Indigenous, and Latinx students, including girls of color, students with disabilities, LGBTQ students, and other marginalized students, are over-criminalized, physically and mentally harmed, and funneled into the school-to-prison-and-deportation pipeline every year.

The ACLU recently wrote to the Department of Education outlining the devastating consequences of police in schools witnessed through our work across the country. In South Carolina, where the ACLU is challenging the criminalization of students for being “disorderly,” “disturbing,” “boisterous,” or “obnoxious,” almost three quarters of juvenile disorderly conduct arrests occur in school. Police in schools arrest Black students for disorderly conduct more than six times as often as their white classmates. Students with disabilities are charged with disorderly conduct instead of receiving emotional and mental health supports through school-based service plans. School policing drives harmful contacts with the criminal and juvenile systems; it also undermines the goals of the education system.

Schools that received federal funding to hire more police actually experienced a decrease in graduation rates, while those that employed more mental health providers saw improved student engagement and graduation rates. Schools that used other types of supports, including restorative and trauma-informed practices, saw beneficial results, including reduced disciplinary incidents, suspensions, dropouts, and expulsions. Investing in mental health resources, support personnel, and interventions that promote positive student interactions can make schools safer and healthier learning environments, while also helping to combat the discriminatory school-to-prison pipeline that targets students of color and students with disabilities.

Instead of funding the policing, tasing, and handcuffing of our students, Congress should redirect funding to proven solutions — including mental health professionals who are trained to support students. The Counseling Not Criminalization in Schools Act would eliminate the use of federal funds for maintaining police in schools and give schools $5 billion in grant funding to help hire counselors, social workers, and other trauma-informed support personnel instead. We need to invest in proven school-based supports and mental health services for our students. It’s time for Congress to take action.

By Jay Stanley, ACLU Senior Policy Analyst

A critical report on the ShotSpotter gunshot detection system issued today by the City of Chicago’s Inspector General (IG) is the latest indication of deep problems with the gunshot detection company and its technology, including its methodology, effectiveness, impact on communities of color, and relationship with law enforcement. The report questioned the “operational value” of the technology and found that it increases the incidence of stop and frisk tactics by police officers in some neighborhoods.

The IG’s report follows a similarly critical report and legal filing by the Northwestern School of Law’s MacArthur Justice Center and devastating investigative reporting by Vice News and the Associated Press. Last week, the AP profiled Michael Williams, a man who spent a year in jail on murder charges based on evidence from ShotSpotter before having his charges dismissed when prosecutors admitted they had insufficient evidence against him.

Shotspotter installs 20 to 25 microphones per square mile in the cities where it is installed, and uses those microphones to try to identify and locate the sound of gunshots. In the past, we have scrutinized this company and its technology from a privacy perspective. Placing live microphones in public places raises significant privacy concerns. After looking at the details of ShotSpotter’s system, we didn’t think it posed an active threat to privacy, but we were concerned about the precedent it set (and others agreed).

But aural privacy is not the main problem with ShotSpotter, it turns out. There are several other very significant civil liberties problems with the technology.

First, as the MacArthur Justice Center details, ShotSpotter is deployed overwhelmingly in communities of color, which already disproportionately bear the brunt of a heavy police presence. The police say they pick neighborhoods for deployment based on where the most shootings are, but there are several problems with that:

• ShotSpotter false alarms send police on numerous trips (in Chicago, more than 60 times a day) into communities for no reason and on high alert expecting to potentially confront a dangerous situation. Given the already tragic number of shootings of Black people by police, that is a recipe for trouble.
• Indeed, the Chicago IG’s analysis of Chicago police data found that the “perceived aggregate frequency of ShotSpotter alerts” in some neighborhoods leads officers to engage in more stops and pat downs.
• The placement of sensors in some neighborhoods but not others means that the police will detect more incidents (real or false) in places where the sensors are located. That can distort gunfire statistics and create a circular statistical justification for over-policing in communities of color.

Second, ShotSpotter’s methodology is used to provide evidence against defendants in criminal cases, but isn’t transparent and hasn’t been peer-reviewed or otherwise independently evaluated. That simply isn’t acceptable for data that is used in court.

The company’s sensors automatically send audio files to human analysts when those sensors detect gunshot-like sounds. Those analysts then decide whether the sounds are gunshots or other loud noises such as firecrackers, car backfires, or construction noises. They also triangulate the timing of when sounds reach different microphones to try to establish a location for the noise, and if it is believed to be the sound of gunshot, they make an effort to figure out how many shots were fired and what kind of gun is involved (such as a pistol versus a fully automatic weapon).

ShotSpotter portrays all of this as a straightforward and objective process, but it is anything but. Vice News and the AP note examples of the company’s analysts changing their judgments on all of the above types of results (which ShotSpotter disputes). In addition, the company uses AI algorithms to assist in the analysis — and as with all AI algorithms, that raises questions about reliability, transparency, and the reproducibility of results. The company turned down a request by the independent security technology research publication IPVM to carry out independent tests of its methodologies.

Further calling into question the appropriateness of ShotSpotter evidence for use in court is a third problem: the company’s apparent tight relationship with law enforcement. A ShotSpotter expert admitted in a 2016 trial, for example, that the company reclassified sounds from a helicopter to a bullet at the request of a police department customer, saying such changes occur “all the time” because “we trust our law enforcement customers to be really upfront and honest with us.” ShotSpotter also uses reports from police officers as “ground truth” in training its AI algorithm not to make errors. A close relationship between ShotSpotter and police isn’t surprising — police departments are the company’s customers and the company needs to keep them happy. But that isn’t compatible with the use of its tool as “objective data” used to convict people of crimes.

Finally, still up for debate is whether ShotSpotter’s technology is even effective. We can argue over a technology’s civil liberties implications until the end of time, but if it’s not effective there’s no reason to bother. A number of cities have stopped using the technology after deciding that ShotSpotter creates too many false positives (reporting gunshots where there were none) and false negatives (missing gunshots that did take place). The MacArthur Justice Center’s report found that in Chicago, initial police responses to 88.7 percent of ShotSpotter alerts found no incidents involving a gun. The company disputes whether this means its technology is inaccurate, pointing out that someone can shoot a gun but leave no evidence behind. But a review of the accuracy debate by IPVM concluded that “while public data does not enable a definitive estimation of false alerts,” the problem “is likely significantly greater than what ShotSpotter insinuates” because the company “uses misleading assumptions and a misleading accuracy calculation” in their advertised accuracy rates.

Given all of these problems, communities and the police departments serving them should reject this technology, at least until these problems are addressed, including through full transparency into its operation and efficacy.

Redistricting is the process of drawing the lines of districts from which public officials are elected. When it’s conducted fairly, it accurately reflects population changes and racial diversity, and is used by legislators to equitably allocate representation in Congress and state legislatures. When politicians use redistricting to manipulate the outcome of elections, however, it’s called gerrymandering — a practice that undermines democracy and stifles the voice of voters. Voters should be picking their politicians. Not the other way around.

Sophia Lakin, Deputy Director of the ACLU’s Voting Rights Project, answers some of the most frequently asked questions about redistricting.

What’s the difference between redistricting and gerrymandering?

The process of redistricting is lawful and equitable when it’s conducted properly. It is also frequently a necessary process to reflect changes in population changes and racial diversity after each decennial Census. When redistricting is used as a tool to manipulate electoral outcomes or discriminate against certain groups, it ceases to be lawful and equitable, and we call it gerrymandering.

Why bother with redistricting?

The Constitution and the federal courts require it. It’s also the fair and equitable thing to do. Historically many states did not redistrict to reflect shifts and growth in their populations. In a series of cases in the 1960s, one of which coined the phrase “one person, one vote,” the Supreme Court held that the Fourteenth Amendment guaranteed “equality” of voting power and that the electoral systems in states which failed to allocate voting power on the basis of population were unconstitutional. According to the 2020 Census data, nearly all of this country’s population growth this last decade was due to the growth in communities of color. Redistricting is an opportunity to ensure that our maps reflect that growing diversity.

Who conducts redistricting?

In most states, the state legislature is responsible for drawing district lines. However, 15 states (Alaska, Arizona, Arkansas, California, Colorado, Hawaii, Idaho, Michigan, Missouri, Montana, New Jersey, Ohio, Pennsylvania, Virginia, and Washington) use special redistricting commissions to draw state legislative districts. Six of these states (Arizona, Hawaii, Idaho, Montana, New Jersey, Washington) also use a board or commission to draw congressional plans, while 10 states (Maine, New Mexico, New York, Rhode Island, Utah, Vermont, Connecticut, Illinois, Mississippi, Oklahoma, and Texas) use an advisory or remedial commission in the event the legislature is unable to pass new plans. Iowa is different from all others in that district plans are developed by nonpartisan legislative staff with limited criteria for developing plans.

Is redistricting the same as reapportionment?

Reapportionment refers to the allocation of representatives to previously established voting areas, as when Congress allocates, or “apportions,” seats in the House of Representatives to the several states following the decennial census. So, for example, based on the population changes captured in the 2020 census, the reapportionment process reshuffled the 435 congressional seats among the 50 states such that certain states like Texas gained congressional seats while some states like New York lost seats. Redistricting is the process of redrawing district lines based on population changes and in some cases may have to take into account a loss or gain of a representative after the reapportionment process.

What is vote dilution?

Vote dilution refers to the use of redistricting plans and other voting practices that minimize or cancel out the voting strength of particular voters, often voters of color. While race-based vote dilution is prohibited by the Constitution and the Voting Rights Act, the practice continues to ​diminish the true political strength of communities of color in particular by fracturing ​those populations across multiple districts or improperly concentrating them together in a single district. Again, the 2020 census shows that nearly all of the country’s growth over the past decade is attributable to the growth in our nation’s communities of color. Redistricting plans should reflect that reality.

How can we make sure redistricting is conducted fairly?

We all need to be involved in the process. We should stay informed of plans to redraw federal, state, and local district lines; attend meetings where plans are presented and evaluated; contact organizations willing to evaluate proposed plans and offer alternatives; write letters of support or opposition to elected officials and the Department of Justice; and seek needed legal advice. The goal of redistricting is to provide fair and effective representation for all. We can help achieve that goal by actively participating in the redistricting process.