Plugging the School-to-Prison Pipeline by Improving Behavior and Protecting Core Judicial Functions: A Constitutional Crisis Looms

The second installment of Metze's pipeline series joins two inquiries he calls "seemingly unrelated." The first is evidentiary: a reading of the Texas Juvenile Justice Department's December 2012 legislative report on Positive Behavioral Interventions and Supports in the Texas Youth Commission's secure-facility schools, offered as further proof that every public school should adopt PBIS. Metze credits the trend lines—a 37% first-year drop in major incident reports in school settings against a 17% rise outside them—while faulting pages recycled from a 2010 report and "ill-defined bar graphs," and reads the rise in African-American students' share of referrals, from 41.7% to 48.8%, as a possible sign of bias in implementation or in the referral mechanism. The second, structural inquiry supplies the title. Tracing probation from Snodgrass v. State (1912) and Baker v. State (1913) through Article IV, § 11A and article 42.12's placement of supervision "wholly within the state courts," Metze treats the supervision of probationers as a core judicial function. He then applies the two-part test of In re Allcat Claims Service (Tex. 2011) to the 2011 merger of the Texas Juvenile Probation Commission and the TYC. The resulting executive agency sets standards for, certifies, investigates, and funds local juvenile probation, and may withhold the money. Conceding that the statute rests on legislative power, Metze argues that it threatens undue interference with the courts' supervision of juveniles on probation, and that a threat is all the second prong requires. His remedies escalate: constitutional amendment, an agency outside the executive with legislative oversight, or abolition of the TJJD and the conversion of juvenile courts into mediation courts.

If you practice juvenile law in Texas, Metze asks a question worth your time: who controls your client's probation? The case law says the court. Juvenile probation officers are "officers of the court" under its "continuing direction," and a juvenile court "cannot delegate its ultimate authority to determine, set and supervise the conditions of probation" (K.K.B. v. State). The 2011 legislation that abolished the Texas Juvenile Probation Commission and the Texas Youth Commission, merging them into the Texas Juvenile Justice Department, moved much of that system under an executive agency. Under Title 12 of the Human Resources Code, TJJD sets the rules and standards for local probation departments, certifies officers, investigates complaints, monitors compliance, and is the primary financial conduit. It may refuse, reduce, or suspend state aid to a juvenile board that fails to comply with its rules, and TJJD Board decisions are not appealable. Metze runs this through the two-part test from In re Allcat Claims Service. The statute is grounded in the Legislature's own powers, he concedes, but the test also asks whether a law threatens to unduly interfere with a core judicial function, and he argues this one does. He confronts the 1977 Attorney General opinion (LO-959) that upheld the old Community Assistance Program, and answers that separation-of-powers concerns are why the Legislature created the TJPC outside the executive branch in 1981. The first half matters if you argue for behavioral treatment: TJJD's own 2012 report shows PBIS cutting incidents and disciplinary time out of class in its secure-facility schools, though Metze notes its thin data and a rising share of referrals for African-American students.

In 2011, Texas lawmakers abolished the state's two juvenile justice agencies and merged them into one, the Texas Juvenile Justice Department. Professor Patrick S. Metze, who directed the criminal clinics at Texas Tech University School of Law, argues in this 2013 article that the merger violates the separation of powers in the Texas Constitution. The issue is probation. Texas courts have long treated the supervision of people on probation as a judge's job. The new department sits in the executive branch. It writes the standards local juvenile probation departments must meet, certifies their officers, investigates complaints against them and controls their state money. It can cut that money off. Metze asks what would happen if a governor decided local courts were too easy on juvenile offenders and had the department withhold funding for treatment facilities in liberal counties. For readers who doubt a governor would act for political reasons, he points to 2009. That year Gov. Perry removed several members of the Texas Forensic Science Commission, including its chairman, as it began investigating whether Cameron Todd Willingham, executed five years earlier, was innocent. The article also reviews the department's December 2012 report on a behavior program in its secure-facility schools. Major incident reports in school settings fell 37% in the first year. The share of disciplinary referrals going to African-American students rose from 41.7% to 48.8%. Metze wants the program in every public school. On the agency, he wants its rehabilitative functions moved out of the executive branch, or the department abolished and juvenile courts turned into mediation courts.

Here's something most people never think about. When a teenager in your county gets put on probation, who's in charge of what happens next? In Texas, it's long been the judge. The court sets the conditions, and the probation officers answer to the court. Professor Metze thinks that's the right answer, and in this 2013 article he warns it's being chipped away. In 2011 the state rolled its two juvenile agencies into one department, the Texas Juvenile Justice Department. That department belongs to the executive branch, the governor's side of government. It writes the rules local juvenile probation offices have to follow, certifies their officers, and hands out the state money they run on. It can hold that money back. The Texas Constitution keeps lawmakers, the governor, and the courts separate on purpose, so no one side collects all the power. Metze's worry is easy to picture. What if a governor decided judges were too easy on young offenders and stopped paying for treatment programs in liberal counties? The article opens somewhere hopeful. Schools inside the state's youth lockups tried a program that teaches and rewards good behavior instead of just punishing bad behavior, and serious incidents in those classrooms dropped. Metze's point: if it works there, it'll work in your kid's school. He also caught something. The state's report highlighted fewer referrals for Hispanic and white students, while referrals for African-American students went up. His fix for the bigger problem? Get the agency's rehabilitation work out of the governor's hands, or scrap the agency and turn juvenile courts into mediation courts where the community takes the lead.

Picture the classrooms inside Texas's juvenile lockups. Starting in 2009, the state made those schools use PBIS, a system that teaches and rewards the behavior you want instead of only punishing what you don't. Professor Metze read the state's report on how it went. Serious incidents in those classrooms fell 37% in the first year, and five of six schools cut the time students spent pulled out of class for discipline. His logic: if it works for young people who are already locked up, it'll work in a regular high school. He also caught something. Referrals went down for Hispanic and white students but up for African-American students, which he says could point to bias. The second half is about power. If you're on juvenile probation, a judge is supposed to be in charge. In 2011 Texas handed a lot of that control, including the money, to one state agency run by the executive branch. Metze says that breaks the Texas Constitution's rule that the courts, lawmakers, and governor stay separate. His bigger idea: shut the agency down and turn juvenile courts into mediation courts run with the community.