Not a Restorative Justice Process

Several of us here at indisputably have been struck by a story that was reported in last Sunday’s NY Times, The Instagram Account That Shattered a California High School – The New York Times (

A high school student in Albany, California started a private Instagram account to post what he said was “edgy” content—but was in reality disturbing and violent racist statements and imagery (for example nooses directed at pictures of African American students).  As the NY Times reported, the account had “barely a dozen followers.”  But, once it was discovered, by a student who was one of the targets, the response reached far beyond the small number of followers. 

The creator of the account, some of its followers and some of the targets, had grown up together. Some considered themselves to be friends. The students who were targeted felt both betrayed and bullied by the content on the account and some of the actions that were related to the content.

Once the students discovered the account and reported it, the school district responded by suspending the followers and expelling the account creator and a few of the more involved followers.  There were subsequent law suits and community action.  But, the part of the story that caught my attention was the process that the school used with some of the students.  Schools around this country regularly use restorative justice processes as an alternative to traditional school discipline. Some do so in a highly skilled way, using best practices from the field. Unfortunately, the process described by the NY Times not an example of that. The story raises serious questions about both the school administrators who decided to use the process and the outside organization who managed the process.

Because of the controversy and strong feelings surrounding this case, the school was understandably concerned about what would happen when the students who had been suspended returned to the classroom. The suspended students, and the students who were identified as victims of the Instagram account agreed (although how informed that consent was is an open question) to attend what the NY Times referred to as a “mediation.”  On the day the suspended students were due to return to the school, they gathered in a classroom with the victims and a “mediator,” ostensibly to talk about how to manage having these students back at school.  Outside the mediation, what became a large crowd of other students demonstrated.  The atmosphere turned angry and ultimately two of the suspended students were injured when they tried to leave the building. One of the disturbing (and strange) aspects of this story is how the crowd knew that the meeting was even taking place, indicating that basic confidentiality wasn’t observed.

There are so many issues in this story.  I am going to focus just on the so-called mediation. According to the story, one key problem is that there was seemingly no preparation in advance. A good restorative process should include the facilitator meeting with all the parties in advance and making sure they know what will happen and that everyone agrees to attend after understanding what will happen during the process. This is particularly important for victims, to make sure that they are prepared for the process, so they are not revictimized in the process. There should be extensive preparation which often includes multiple meetings, in advance, with victims and offenders, to find out what they hope to say and accomplish in the process and to help them figure out how to accomplish their goals.  This kind of preparation helps to make sure that all the participants are prepared for what will happen.  Unfortunately, it seems there was no advance preparation of any kind. The suspended students were not prepared to and had not agreed to take responsibility for their actions (the harm) and to talk about how to repair it.  As a result, it seems from the story that the victim students who participated in a process did not feel that the suspended students either meaningfully acknowledged the harm or took steps to repair the harm.

Part of the problem was that the most responsible students, including the one who created the Instagram account, were not at the meeting (since they had been expelled). This goes to another key part of preparing for a restorative process: the right people should be in the room or their absence should be acknowledged and built into the process. There are examples of restorative processes that do not include the offender (including in sexual assault cases) and are more focused on the victim.  But it does not appear that this was intended to be the focus for this process or that any serious efforts were made to acknowledge and manage the fact that the more culpable players were not in the room.

There is no doubt that students, and the community at large, were seriously impacted by the violent and racist messages in the Instagram account.  And the school administrators had a difficult situation in terms of deciding how to address this situation.  They had no playbook.  The existing tools for school administrators are limited and exist within a wider society where heavy-handed tactics, like suspension and expulsion, are often supported by the community at large. In this case there were calls by parents and students for the offending students to be expelled.  This simple solution, like the call for more and more prison time in response to crime, may not serve any purpose beyond giving immediate satisfaction that something was done. We know that suspending and expelling students makes it more likely that those students will get pulled into our criminal legal system. Fortunately, this didn’t seem to happen in this case, likely due to the combination of the socio-economic status of these students and family support.

School administrators in this story seemed to not know how to respond to the situation beyond suspensions and expulsions. Sending some students to a “mediation” may have seemed like a good idea at the time. Unfortunately, the school administrators didn’t seem to know what to look for and demand in using this kind of process. Instead, the process that was conducted seemed to only entrench the harms already done and accomplished nothing towards repairing the harm or healing the community. The process seems to have escalated lawsuits and caused both physical and emotional harm. The process was an example of the problem that Mark Umbreit identified years ago that the overuse of restorative justice could result in the “McDonaldization” of the process—dumbing it down to the point that it really isn’t restorative justice. 

Whatever happened at this high school in Albany, California, it wasn’t restorative justice and it seemed to only make a bad situation worse. And, no doubt, has left a bad taste in the mouth of many about what restorative processes or mediation can do.  For me, it is an example of what not to do and why school administrators using these processes need to understand what they are doing and how it can and should work. They shouldn’t just look at the use of these processes as an easy out. This story may also be a reminder to us in the dispute resolution community that when we talk about introducing these processes, we need be cautious and emphasize the importance of preparation as a key part of the process itself.

4 thoughts on “Not a Restorative Justice Process”

  1. It was difficult to read the article about this tragic episode in the school in California. It seems the RJ facilitator was in over her head in this particular instance, but I don’t see that as the primary cause of the implosion of events. I see the real problem, the underlying brokenness out of which this whole episode arose, as a community immersed in a punitive justice mentality that is fast to demand and impose retribution and revenge, before stopping to consider the genesis of what the boys were doing. That mentality no doubt also informed the boys who were involved in the original Instagram messages, thinking that demeaning others was fun. When what they did was discovered, the embedded desire for revenge quickly poisoned the environment. Community members may believe that is the only appropriate response because they have no viable alternative, a common belief in our culture.

    I felt badly reading the early sentiments of the students involved in the Instagram incident and their recognition of how wrong what they did was, and their desire to apologize–until they were under serious attack by those wanting revenge. It could have turned out very differently, had the system been in place to support a different outcome.

    For many reasons, school punishment and the criminal courts are not able to police the Internet well. There are competing legal theories about what is said online–1st Amendment free speech versus defamation, just as happened in this case. The final outcomes of multiple adversarial court battles were far from fair or just.

    The Alliance for Unitive Justice is teaching Unitive Justice culture change in three elementary schools, a middle school and a high school–a district about the same size as the one in the article. Best to begin teaching values, honesty and lovingkindness to the elementary students, then when they get to middle school and high school, there will be fewer problems. They will be more likely to selfgovern their Internet conduct, which is the only real solution to that problem.

    Better online behavior must eventually come from a culture change where we learn to be more caring and connected to one another. We can create the conditions in which that happens with training and processes that create such a culture–one school at a time. The entire community will benefit, and eventually the world.

  2. Thanks for these insights Cynthia. And who was this so-called “mediator” who allowed this process to go forward with all of these flaws? I know it is up for debate whether the neutral is responsible for the fairness of the outcome, but certainly the neutral is responsible for the quality of the process. And what happened to any confidentiality? Why is it that we know what (allegedly) happened in the room?

  3. This incident points out the need for early engagement of dispute system design professionals by the entity which identifies the need for a process. For school systems, this should be a district wide policy. You can’t simply assume hiring a “mediator” is going to address the underlying issues. It may address a public relations issue at the moment. It seems that because everyone knew of the meeting that this was driving the process. This short sighted approach can blow up, as we saw. The other issue is the need for individual “mediators” to design their processes in a way that leads to the broader goals of a restorative process being addressed. The apparent lack of this step in this case seems to suggest that the goal was short sighted and short term – to indicate to the public that the school system was responding to post disciplinary action concerns by hiring a “mediator.” Finally, I wonder, from a dispute Prévention point of view, what longer term steps can be put in place at this school to address some of the systemic issues that manifested in the students’ underlying behaviors.

  4. I appreciate the analysis here Cynthia–very frustrating when a process that can be so effective in supporting victims and in healing turns into the opposite through poor planning and a clear misunderstanding of how RJ and mediation could and should work. It’s also frustrating that the NYT reporter, who really has been embedded in the situation, is mislabeling and misconstruing the processes. And, as the semester starts, could this be a good student exercise toward the end of the semester in how they could design a better process in the midst of a crisis? I wish we could think that something like this won’t happen again but…

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