Beverly Ford stories from The Center for Public Integrity

EPA's 'Brownfields' program coming up short

2012-09-25T06:00:01-04:00

In Oak Creek, Wis., a fence slashed with holes surrounds a barren 300-acre complex of buckling former factories where the soil and groundwater are polluted with arsenic and other chemicals.

Asbestos sprayed for almost six miles from a shuttered textile mill in Sprague, Connecticut when children trying to free a canoe set it on fire.

A toxic cocktail of volatile organic compounds, petroleum, hydrocarbons and metals lies along the banks of Massachusetts’s Malden River.

Despite about $1.5 billion in federal grants and loans doled out by the Environmental Protection Agency over 19 years, hundreds of thousands of abandoned and polluted properties known as “brownfields” continue to mar communities across the country. Some sites are contaminating groundwater, while at others the toxins’ impact on the communities are unknown.

The shortcomings are due to limited funds, a lack of federal oversight, seemingly endless waits for approvals and dense bureaucratic processes that make it difficult for poor and sparsely populated neighborhoods to compete against larger and middle-class communities that have the means to figure them out, an investigation by six nonprofit newsrooms has found.

In a written response, the EPA said its Brownfields Program “is not intended to address all of the brownfield sites in the U.S.”

The agency defines a brownfield as “real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant.”

The stated goals of its Brownfields Program are to fund the cleanup of contamination, to improve the quality of life of blighted communities and to provide economic stimulus.

But an investigation by nonprofit newsrooms across the country, which was coordinated by the Investigative News Network, found problems in every community examined.

Among the findings:

In Connecticut, only 19 brownfields properties have been completely cleaned up and certified since 1994, despite close to $60 million in brownfield-related grants and loans by the Environmental Protection Agency -- including $12 million aimed directly at removing or containing pollutants -- and millions more by the state. Even some projects with ready developers languish because of gaps in grant cycles.
In Massachusetts, most of the clean-up funds have gone to former mill towns in suburban areas, where developers are eager to build, rather than to minority urban communities. Even more disconcerting, the “licensed site professionals” who monitor the cleanups are paid by developers, eliciting criticism about potential ethical conflicts and lack of oversight. The state only takes a closer look at sites if a problem is detected in paperwork -- a rare occurrence, critics claim.
In Wisconsin, which boasts a well-regarded program, the state brownfields chief says it will take decades to clean up the thousands of contaminated sites, whose ranks have grown during the recession.

What’s more, the EPA doesn’t know how many of these abandoned properties across the country exist, where they are or how many have been cleaned up. Its public database is riddled with errors and omissions, the Wisconsin Center for Investigative Journalism discovered.

High-ranking EPA officials declined interviews for this article. The agency ultimately supplied written responses, many of which did not address underlying questions or criticisms, but rather repeated that the agency “provides funding and technical assistance” to others who assess, clean and redevelop brownfield sites.

Justin Hollander, an associate professor in urban planning and environmental policy and planning at Tufts University and author of several books on brownfields, said the investigation’s findings support what he’s long thought: that the program’s emphasis on developer-blessed projects is misguided.

“What we need is a new model,” he said. “In cases where the money is spent and the site is remediated and rebuilt, that's a good thing but it happens to so few sites that most people who live near brownfields have not seen the benefits."

In national surveys by the U.S. Conference of Mayors and partly funded by the EPA, the most frequently reported impediment to brownfield redevelopment cited time and again has been a lack of cleanup funds.

The EPA reports that it denies two out of three requests for funding.

Lack of monitoring

Even in those cases where it has provided grants or loans for cleanups, the EPA does not know how well the contamination has been remediated.

That’s because the EPA’s brownfields program merely hands out grants and loans. The federal government has not established standards for Brownfields cleanups. The EPA does not even verify that the work was done, according to a 2011 report by its Office of Inspector General.

The Inspector General audited 35 cases and found that in none of them did the EPA require the documentation to prove that cleanups met environmental standards.

“This occurred because the Agency does not have management controls requiring EPA [staff] to conduct oversight” to even assure that the reports meet documentation requirements, according to the report. “Consequently, decisions about uses of redeveloped or reused brownfields properties may be based on improper assessments. Ultimately, threats to human health and the environment could go unrecognized.”

The Inspector General also questioned EPA’s ability to step in and do long-term oversight of land that’s been cleaned, especially when states or the new owners aren’t prepared to do the job themselves.

In a follow-up report, the Inspector General said the agency promised to start training recipients and its own staff to better conduct “due diligence” in these areas by the end of this year. The agency declined to address questions about the criticisms for this story.

EPA officials rely on states to set and enforce environmental standards in brownfields cleanups. Some increasingly cash-strapped states are relying on the developers themselves to hire consultants to verify the properties were cleaned up.

In Connecticut, for instance, licensed environmental contractors are the primary oversight for 80 percent of brownfields redevelopment projects; the state checks up on paper, but rarely in person. Massachusetts’ Department of Environmental Protection previously inspected brownfields cleanups, but due to budget cuts it now mostly reviews paperwork filed by consultants hired by the developers.

Environmentalists in Connecticut worry that this system is “by and for” the contractors, said Roger Reynolds, senior attorney for the Connecticut Fund for the Environment.

“Carrots and sticks have to be part of every incentive system,” he said. “Hopefully, you can do 90 percent of it with carrots, but you’ve got to have the sticks.”

Plastic vapor barriers and other soil containment measures are all that states require in some types of redevelopment.

But sometimes, such efforts fail or the science changes. New York’s Department of Environmental Conservation decided to reopen hundreds of Superfund, brownfield, and other sites that had been remediated to investigate potential new threats from vapor intrusion, something that had not been considered at the time of the “cleanups.” The reviews are ongoing, but the agency has already found mitigation will be necessary at more than 70 sites.

Investors in Michigan were horrified to learn that trichloroethylene remained in the soil under the condominium they’d purchased, which was built at the site of an abandoned factory, court records show. The soil had been covered up, rather than removed. “The site later turned out to be seriously contaminated,” read an October 2011 ruling from the Michigan Court of Appeals. (Frank and Tonya Alfieri successfully sued their real estate agent for failing to disclose the pollution.)

There can be real and serious consequences to communities that live with these contaminated properties.

An environmental report earlier this year found that pedestrians who frequently walk past a former chemical company site on the Brooklyn-Queens border in New York City may be exposing themselves to an increased risk of cancer.

“There are so many chemicals in our society, and having these highly toxic sites is clearly a hazard and needs to be taken care of,” said Reynolds, of the Connecticut Fund for the Environment.

Program began in 1993

The EPA began its brownfields program with a $200,000 demonstration project to encourage redevelopment in Cleveland, Oh. in 1993, followed by two grants for the same amount to Richmond, Va. and Bridgeport, Conn. in 1994, according to EPA documents. By 1995, it had received more than 100 applications for cities competing for funds.

In a report to the Senate Subcommittee on Superfund, Toxics and Environmental Health last October, program director David R. Lloyd said that in its history, the program has awarded about 2,000 grants for environmental testing, “made more than 24,500 acres ready for reuse,” created more than 72,000 jobs and “leveraged more than $17.5 billion in economic development” through grants and low-interest revolving loans.

“EPA will continue to implement the Brownfields Program to protect human health and the environment, enhance public participation in local decision making, build safe and sustainable communities through public and private partnerships,” he said, “and demonstrate that environmental cleanup can be accomplished in a way that promotes economic redevelopment.”

The EPA Brownfields Program’s budget must be approved by Congress. The $167 million appropriated last fiscal year went to grants for projects, grants to states, municipalities and tribes, loans and administrative overhead.

Developers and state and local officials said the grants are a valuable piece in the patchwork of federal and state funds they must pull together to pay for redevelopment in blighted areas. States have developed their own programs, some supplementing EPA funds with state or municipal money or special taxes.

But each EPA brownfields cleanup grant is so small – typically capped at $200,000 – that the program’s ability to influence what kinds of projects go forward is limited. In many cases, the grants are a bonus or seed, depending on what point in the process they arrive. Since its inception, the EPA’s brownfields program has funded fewer than 900 cleanups across the country, according to its latest report.

The agency is supposed to favor those communities that struggle the most.

Federal law states that in weighing grant proposals, among the factors the EPA should consider is “the extent to which a grant will meet the needs of a community that has an inability to draw on other sources of funding for environmental remediation and subsequent redevelopment of the area in which a brownfield site is located because of the small population or low income of the community.”

In worksheets EPA officials use to evaluate grant applications, “community need” makes up 15 out of a maximum 107 points. How much sway a community’s poverty level had in any individual grant is impossible to know because the agency won’t provide the information publicly.

When asked by the Investigative News Network for score sheets through a public records request, the EPA produced documents that were so heavily redacted that they might as well have been blank. It said the narrative assessments by its staff are part of the “deliberative process” and thus not public record.

The agency did not answer questions about how many of its grants go to poor neighborhoods. It said it awards “nearly half” to communities with fewer than 100,000 residents.

Urban policy experts and state officials say that the EPA and state programs in effect function less as environmental protection programs than building programs. Projects must find willing developers, investors or other grants to show viability before the agency will award a cleanup grant.

“The brownfields projects, at the end of the day, are real estate transactions and real estate projects and if the development has no likelihood of success, that process will likely not result in a cleanup,” said Graham Stevens, brownfields coordinator for Connecticut’s Department of Energy and Environmental Protection.

Municipalities point out that one huge benefit of these redevelopments is that they return idle land to the tax rolls, generating revenue that ultimately benefits the communities.

Hollander, the Tufts University professor and author, said that the program will never clean up enough properties to make a significant difference because it’s too expensive.

“The problem is just so massive that using the [developer-driven] model to deal with all the brownfields would bankrupt the federal government,” he said.

Hollander said communities would be better served if federal money was spent creating parks, bird sanctuaries and other green spaces where plants can be used to clean up the soil, instead of multi-million dollar developments.

“When you look at the amount of money spent to subsidize the development of a shopping mall on a former brownfield, you can create a safer soil in hundreds of other locations that would be a better use of that money,” he said.

Unknown number of brownfields

The EPA states that 450,000 to 1 million brownfields properties lie fallow across the country, a range it attributes to the U.S. Conference of Mayors. EPA officials said the agency doesn’t “spend any time counting” polluted parcels.

Many communities have not inventoried their properties and the EPA said it doesn’t know where they all are. Its public database contains about 17,000 records, generally only those that EPA has funded for assessments or cleanups, and the data are provided by the grant-seekers.

Since 1995, the EPA has awarded more than twice as much in grants for assessments than cleanups -- $480 million compared to $158 million, according to Lloyd’s 2011 testimony to a Senate subcommittee. It has given out an additional $400 million in loans, the agency said, but those must be paid back. It’s also given $508 million directly to states and tribes over the years and handed out another $37 million for job training, the agency said.

Assessment and cleanup grants are capped at $200,000, with some room for exceptions.

“That’s not enough money,” said Jennifer Fencl, environmental services director for the East Central Iowa Council of Governments. The grants, she said, are “incredibly competitive because there are so many brownfields.”

Furthermore, the application for funding is so cumbersome that some municipalities hire consultants or band together to form regional groups to compete for the limited funds.

“The grant application is extremely dense; it’s incredible,” said Chuck Betts, executive director of the Keokuk Chamber of Commerce in Iowa. “It will take at least a year to write.”

Worse, communities often don’t know the program exists, are bewildered by the application process or have had trouble attracting a developer, the investigation found.

Impoverished neighborhoods are naturally less appealing to developers -- and, ironically, are more likely to be the site of particularly noxious sites to begin with, according to Dr. Daniel Farber, director of Northeastern University’s Environmental Justice Research Collaborative.

“Generally, communities with less economic power are usually targeted for the disposal of hazardous waste” and other unwanted businesses, he said. Often, a business may abandon a poorer neighborhood, leaving behind a legacy of toxins and pollutants.

As a result, poor Americans are both more likely to live with polluted sites and less likely to be able to attract a means to turn them around, despite the existence of the brownfields program.

Dozens of severely polluted, low-income communities across the country have never received grants, a computer analysis of EPA data for the Investigative News Network by a Duke University professor showed.

By contrast, some savvy communities have had no problem getting repeated grants.

Coralville, Iowa, has a brownfields coordinator on staff working on its $40 million Iowa River Landing District development, which will ultimately include townhouses, hotels, a theater, an arena and medical clinic at the site of a former truck stop, warehouses and scrap yard.

The town of 19,000 residents is squarely middle class, situated near the University of Iowa, with 14 percent living below the poverty line, according to the 2010 census. Since 1999, Coralville has received $1.9 million in grants -- the most of any city in the state -- from the EPA to conduct 109 site assessments and seven cleanups.

“I always joke when we’re hiring a new coordinator around grant-writing time that there’s no pressure on you, but everyone before you has gotten the grant,” City Engineer Dan Holderness said.

And the number of brownfields in America continues to grow.

In Massachusetts, officials said 1,200 new spots of contamination are discovered annually.

In a 2011 grant application for federal funding, the Wisconsin Department of Natural Resources said the recent recession has caused a “startling” number of plant closings.

It is, the report said, “an entirely new generation of brownfields.”

Kate Golden, Wisconsin Center for Investigative Journalism; MacKenzie Elmer, Iowa Center for Public Affairs Journalism; and Jake Mooney, City Limits contributed to this article.

Massachusetts workers killed, injured at facilities touted as 'Model Workplaces'

Massachusetts,United States — 2012-05-18T06:00:01-04:00

As federal regulators review a controversial program exempting government designated “model workplaces” from regular safety checks, newly released U.S. Occupational Safety and Health Administration records detail significant safety risks, injuries and even deaths at the sites across Massachusetts.

OSHA, the federal overseer of workplace safety, has also allowed some Massachusetts employers to retain their “Voluntary Protection Program” (VPP) status even after serious safety problems have been exposed or workers have been killed, according to more than 1,000 documents obtained by the New England Center for Investigative Reporting under a federal Freedom of Information Act request.

The VPP designation frees employers from regular health and safety inspections, and they are largely left to police themselves, a flaw that has contributed to the death of at least two Massachusetts workers, some critics said.

“If you're a VPP program, that should never happen,” said James Lee, a trustee with the American Postal Workers Union Local 497 and a member of the OSHA investigating team that reviewed a horrific 2006 fatal accident at a U.S. Postal facility in Springfield, Mass.

“This would never have occurred if (OSHA) came in more frequently,” Lee said.

OSHA rarely strips VPP sites of their special status, even after violations are found or fatal tragedies occur, like the death of postal worker Robert J. Scanlon in Springfield and the 2004 death of a 34-year-old mother of three who was accidentally sucked into an adhesive coating machine at a Spencer, Mass., manufacturing firm, the OSHA documents show.

Currently 41 Massachusetts employers participate in the highly touted VPP program, including power, chemical and nuclear plants, military and postal facilities and biotechnology firms. Those worksites given the highest VPP rating are subject to OSHA re-evaluations every three to five years; those with lower ratings every 18 months to 2 years, according to the program guidelines.

GE Transportation Aircraft Engines in Lynn has maintained its VPP status, despite a $14,000 fine last year for failing to assess and document the condition of a covered piping system that exposed workers to explosion hazards, OSHA records show.

Workers at defense contractor Raytheon’s Andover plant, a VPP designee since 2009, were exposed to several electrical hazards that could have led to electrical shocks, burns or even death, OSHA inspectors found last year. The hazards were discovered within a year of Raytheon's disclosure in a 2010 company safety report that its Andover facility was one of three Raytheon plants among the company’s U.S. sites with the highest injury rate.

The release of the heavily redacted OSHA records comes in the wake of two recently announced federal reviews of the program, which started in 1982 to reward employers who “achieved exemplary occupational safety and health,” according to OSHA's program description.

More than 80 workers have died at VPP sites since 2000, according to an investigation published last year by the Washington D.C.-based Center for Public Integrity. Following the report, the U.S. Department of Labor's Office of Inspector General announced an upcoming audit of the program. OSHA is also conducting its own “top-to-bottom” internal review.

In addition, the federal Government Accounting Office released a report last month faulting OSHA for failing to give clearer guidance to field inspectors about how safety incentive programs for employers like VPP should operate.

Despite numerous requests, OSHA officials did not respond to written questions or return phone calls seeking interviews with NECIR.

Fines slashed following safety violations, including a fatality

Despite at least six “serious” alleged violations — offenses that OSHA believes could cause death or serious injury — against VPP workplaces in Massachusetts since 2001, OSHA has slashed fines in almost all of those cases, including some by as much as 75 percent. Even after finding these problems, though, the agency either approved the site into the program or renewed its status, records show. The OSHA records provide no details about why the fines were reduced.

Laura Pacquette, a 34-year-old mother of three, had worked at FLEXcon, a plastic film and sheet manufacturer in Spencer, Mass., for nine years when she was accidentally pulled into an adhesive coating machine on Dec. 11, 2004. She died of crushing injuries two days later.

OSHA's investigation of the accident found FLEXcon failed to provide adequate guards on the equipment “to protect the operator and other employees from hazards created by a crushing action." The company later corrected the hazard and was fined $6,300, an amount reduced by OSHA to $5,800 just four months later.

FLEXcon was never dropped from the VPP program. Today, with no recorded OSHA violations since that incident, FLEXcon remains part of VPP, a shining example of what Michael Engel, the company's Chief Operating Officer, said in a press release announcing the firm's 15th year as a VPP participant was “proof of the outstanding dedication and commitment of FLEXcon employees in helping to create and maintain a safe and healthful working environment.”

Three other VPP companies in the Bay State — beverage maker Coca Cola in Northampton, defense contractor Raytheon in Andover and chemical manufacturer Solutia Inc. near Springfield — have each been cited for “serious” violations by OSHA since 2003.

All three were ordered to pay fines ranging from $2,275 to $22,000. OSHA later reduced those fines for Coca Cola and Raytheon, in one case by more than 75 percent. The three companies remain on OSHA's VPP list.

Danger and a death at Massachusetts postal facilities

Robert J. Scanlon was 58 when he was crushed to death on Nov. 8, 2006, after being pinned between a truck and a trailer at the Postal Service's Logistics and Distribution Center in Springfield. The now-closed facility was among the 130 postal sites across the country designated as VPP, the largest group of any employer in the U.S.

But before and after Scanlon’s death, there were concerns about safety at the Springfield worksite. Two months before Scanlon's deadly accident, OSHA cited that postal distribution center for two serious health and safety violations. A postal “clean up team” at that facility lacked adequate protective gear and were not properly trained in the use of a chlorine bleach solution when they were called in to mop up a chemical spill. Some of the employees suffered burns and dermatitis as a result of using inadequate protective gloves, OSHA records show. The postal service was fined $975 for those violations.

Two months after Scanlon's death, OSHA again cited the U.S. Postal Service, this time for failing to follow recognized safety practices in connection with the fatality. A $7,000 fine was also imposed. The fine was $3,786.33 below the $10,786.33 average amount assessed to employers in 2006 for safety violations resulting in death, according to a 2007 study conducted by The Massachusetts AFL-CIO, the Massachusetts Coalition for Occupational Safety and Health and the Western Massachusetts Coalition for Occupational Safety and Health.

The study, titled “Dying for Work in Massachusetts: The Loss of Life and Limb in Massachusetts Workplaces,” also found that OSHA was so understaffed and underfunded, it would have taken about 117 years for OSHA inspectors to check each workplace under its jurisdiction in Massachusetts alone.

In the aftermath of Scanlon's death, OSHA found several health and safety violations, many of which likely existed beforehand. Among those violations was shoddy record keeping, inadequate employee training, poor lighting conditions, an improperly working intercom system and inadequate safety equipment, said Lee, the union official. Investigators also found that Scanlon was not using safety gear because the required orange vest and flashlight apparently had not been returned to its proper storage area, Lee said.

Scanlon's family did not return several calls requesting comment.

Lee is not alone in his criticism of the program. Other union representatives said the VPP program allows OSHA to exempt businesses from certain evaluations for up to five years, leaving a regulatory gap that can lead to lax safety.

“When VPP first started, the result was extremely positive,” said Timothy Dwyer, president of the National Postal Mail Handlers Union Local 301, rattling off a list of safety improvements that included the purchase of hydraulic equipment designed to lift heavy pallets or large mail-filled bins, easing the physical strain on mail handlers. Dwyer said the union embraced the VPP concept, convinced that it would bring more safety programs into the workplace.

Then several years ago, union officials had second thoughts. With fewer workplace checks by OSHA required under the VPP program, it started to look like safety was being compromised, they said. Regularly scheduled maintenance was being postponed due to budget cutbacks, worrying union officers concerned about accidents. Without the regular OSHA checks, they wondered if safety was being compromised. Soon, unions at the Springfield VPP facility began talking about getting rid of the elite safety program in favor of more conventional OSHA inspections.

“We thought it was a joke,” David Sarnacki, Local 497's maintenance craft director said of the VPP program. "We felt that after a fatality, why were we still part of this?”

It was the economy, rather than the union, however, that finally ended the Springfield facility's VPP program when budget cuts forced a merger with another postal center about two years ago.

Union officials claim they could see the impact cost-cutting measures were having on safety long before that merger as the postal service began grappling with billions of dollars in losses.

Machinery once quickly repaired was not undergoing regular maintenance while staff cuts along with increased demand for quicker mail processing was keeping malfunctioning machines in operation, Dwyer said.

“It's a matter of ignoring procedures because procedures cost money,” he noted. ”An adherence to safety issues is not a high priority for the Postal Service right now.”

Postal officials dispute that contention, however, saying employee health and safety remains a top priority. They declined further comment.

Yet postal workers said they continue to grapple with unsafe conditions, particularly around electrical issues.

Sally Davidow, spokeswoman for the American Postal Workers Union, said beginning in July 2010, OSHA fined the U.S. Postal service more than $6 million after finding that it willfully violated safety standards by exposing workers to serious and potentially fatal shock hazards and burns at 350 processing and distribution centers nationwide. It remains unclear how many of the 29 processing and distribution centers designated as VPP sites were among those plagued by electrical hazards, Davidow said.

Management and union views on VPP effectiveness

Yet despite those violations, many union and company representatives in Massachusetts said participation in the VPP program has made a safer workplace for everyone, provided that management and employees can work cooperatively with OSHA to solve safety issues.

Cindy Raspiller, director of environmental health and safety for Raytheon Integrated Defense Systems, including Raytheon's Andover facility, called participation in the VPP program “a transforming process” that has not only produced safer work conditions but also helped contribute to cost savings.

“We had a good, solid compliance program to begin with,” she said. ”What VPP did was take us beyond that.”

Yet just two years before entering the VPP program in 2009, Raytheon's Andover plant faced violations labeled “serious” by OSHA.

In February 2007, an employee at Raytheon's Andover facility lost his fingers while servicing a machine. Just four months later in June 2007, another employee at the same plant suffered burns to his face while uncapping a hot radiator on a lawnmower. Then, in 2009 after gaining VPP status, the Andover facility was cited again for exposing employees to electrical hazards.

Despite those violations, the question for some is not whether the VPP program works, but whether there is a commitment to make it work at all.

“You have to have a full commitment by management and labor to achieve safety,” said.

Marcy Goldstein-Gelb, executive director of the Massachusetts Coalition of Occupational Safety and Health. ”Unless you have a strong union health and safety program, you end up with companies who portray themselves as safer than they naturally are or who are unable to identify the full range of health and safety issues.”

The New England Center for Investigative Reporting is a non-profit newsroom based at Boston University. This story was done in collaboration with the Center for Public Integrity and the Investigative News Network.

Racial disparity in school discipline in Massachusetts

Massachusetts,United States — 2012-02-06T11:28:44-05:00

A good student with no disciplinary record, Sonia Vivas was on track to fulfill her dream of becoming a lawyer when an encounter with two other teens sent her life into a tailspin. Accused of stealing a cell phone and pulling a knife on a student, the 14-year-old eighth grader was tossed out of school in 2007 with little more than a cursory hearing after the mother of one of the girls, both white, complained her daughter felt threatened.

For six months, Vivas, who denies the accusations, says she languished at home, banished from classes at her Somerville, Mass., middle school where she was the only Hispanic student in the eighth grade.

“It was pretty traumatizing,” she says today, reflecting on the incident she now believes was sparked by jealousy over her friendship with one of the girl's ex-boyfriend. “It made me feel pretty horrible. It changed my life.”

With no due process rights to a hearing under Massachusetts law, Vivas was expelled from school after only a brief interview with the school principal to explain her side of the story. Today, nearly five years later, school officials declined comment on Vivas' dismissal but said where student safety is an issue, the expulsion process remains unchanged.

It took the intervention of a lawyer and a diagnosis of a learning disorder a label that meant the state was legally required to provide alternative schooling to special needs kids to finally get Vivas back to class, this time at an alternative school. Without a special needs designation, Vivas would have been out of options since Massachusetts does not require school districts to provide alternative education for suspended or expelled students. Even if Vivas moved out of town, her new school district would not have been required to provide her with an education. Yet today, the Somerville High School honors student is headed for a brighter future. Her dream of a legal career, however, was crushed by the hours spent fighting to get the school district to allow her to return to the classroom. Although she won that fight, the battle soured her dream of becoming a lawyer, she said.

Vivas' story is not unique.

According to data from the U.S. Department of Education's Office of Civil Rights (OCR), more than three million students are suspended or expelled annually from schools nationwide, including a disproportionate number of minorities. Many of those suspensions are for non-violent, non-criminal behavior such as swearing, talking back to a teacher, tardiness or truancy, said Barbara Best, director of foundation relations and special projects with the Children's Defense Fund in Washington, D.C.. The organization documented those reasons in its “Cradle to Prison Pipeline Campaign,” CDF's effort to curb school suspensions.

“These cases are not jeopardizing school safety,” Best says, noting that suspending or expelling students for such minor behavioral infractions often leaves pupils so behind on their coursework that many end up dropping out of school entirely.

“We understand (school administrators) want to create a safe environment,” she says, “But we can't push students out of school for minor offenses.”

In Massachusetts, more than 190,000 school days were lost to out-of-school suspensions and expulsions during the 2009-2010 school year, a New England Center for Investigative Reporting analysis of Massachusetts school discipline reports found. That's about one school day for every five Bay State students or just over 10 percent of the 172 million school days logged annually by the state's 955,563 elementary and secondary pupils. Boston was more likely than other school systems to permanently expel students, primarily for violent drug or criminal activity, while Worcester students lost more than 5,000 days of class time more than any other school district in the state due to out-of-school suspensions, the data showed. Boston, one of the larger school systems in Massachusetts, logged only 2,765 lost days to out-of-school suspensions.

While those figures reflect a troubling trend, even more troubling is that OCR data shows that minority students are being expelled or suspended at disproportionately higher rates than their white counterparts. According to that 2006 federal data, the most current available figures show that black males are being expelled at six times that of white male students and at twice the rate of white male suspensions.

Smoking, vandalism, obscene language and leaving without permission got the white kids in trouble, while black students got disciplined for making noise, being disrespectful, loitering and making threats, said Isabel Raskin, an expert on zero tolerance policies with the Juvenile Justice Center at Suffolk University in Boston.

Once removed from school, many of those youngsters fall behind in their studies, primarily because 86 percent of students involved in serious discipline cases get no educational services once tossed from the classroom, according to a 2007-2008 state study. Although Massachusetts Department of Elementary and Secondary Education spokesman JC Considine said the state suggests that school districts offer some type of alternative education wherever possiblefor suspended or expelled students, education advocates say few actually do. Massachusetts law only requires the state to provide alternative education to special needs students who have been suspended or expelled.

That distinction has some in the Commonwealth worried about the state's educational priorities.

“We're creating what many people are calling 'dropout factories,'" said Nakisha Lewis, a project manager with the Schott Foundation for Public Education, a Cambridge, Mass. group that advocates for more equitable distribution of educational resources to help students achieve success. The foundation, which has released several reports on that topic, found that students who are suspended or expelled often drop out of school, leading to juvenile delinquency, arrests and eventually prison. Taking kids out of class for non-violent offenses, Lewis explained, is akin to creating what reform advocates now call “cradle-to-prison pipeline.”

“Suspending a student for more than 11 days is tantamount to expulsion,” said Michael Holzman, the research consultant who conducted the Schott Foundation study, adding that comparative studies, including one conducted by the Pew Partnership for Civic Change, shows that school dropouts make less money, have a harder time finding a job and often end up in a life of poverty or in prison. At 40 percent, black men also make up most of the inmates in prison even though they are only 12 percent of the population, according to U.S. Department of Justice statistics.

“It doesn't take a leap of imagination to know that if you take children with problems and throw them onto the street with little or no education, we're going to breed a society of criminals,” noted Attorney Sam Schoenfeld, with the Wallace Law Office in Canton, Mass., who has represented a number of expelled and suspended students. “What needs to be done is to stop this chain of events.”

Yet stopping student suspensions and expulsions may be difficult.

“When a child as young as four is suspended, something is wrong,” said Best, adding that the suspensions of grade schoolers should be “a wakeup call” to school administrators that zero-tolerance discipline policies just don't work. “We don't have a child problem, we have an adult problem if we're suspending four, five and six-year-olds,” she added.

Yet, despite those numbers, the suspension and expulsion of Massachusetts' youngest students hasn't stopped. In December 2009, one year after that state discipline report was issued, an eight year-old Taunton boy was suspended from school and ordered to undergo psychological testing because his stick-figure drawing of a crucified Christ was considered too violent by school administrators, the child's father later told reporters. School officials denied that the boy's suspension had anything to do with religion and stood their ground, saying “the incident was handled appropriately.”

One year later in 2010, Brockton officials paid out nearly $250,000 in legal fees and settlement costs when the mother of a six-year-old sued after her son was suspended for the alleged sexual harassment of another first grader. Both the six-year-old and eight-year-old suspended students were minorities, according to news reports of the incidents.

By the time students reach high school, suspensions and expulsions peak, especially for minority students, like one Somali boy who was expelled from high school last year after he poked another student with a pencil, said the boy's lawyer, Thomas Mela, now the director of the Children's Law Support Project at Massachusetts Advocates for Children in Boston. Despite no prior disciplinary record, the 16-year-old was cited for using the pencil as a weapon, a charge which mandated immediate expulsion under the school's code of conduct. Only after Mela became involved in the case was the teen allowed to return to school. He remained on probation for the rest of the school year without further problems, the lawyer said.

Still, that incident remains a disturbing reflection on what is happening in classrooms throughout the Bay State where minority students, especially black and Hispanic males, are routinely tagged as troublemakers, advocates said.

“Suspensions for less serious, non-threatening behavior needs to stop,” said Raskin. “No kid should be denied an education. It doesn't make sense. There are better ways to discipline children.”

One of the reasons for such strict disciplinary measures can be traced back to April 20, 1999 when two high school seniors, Dylan Klebold and Eric Harris, massacred 12 students and a teacher before killing themselves at Columbine High School in Denver.

“Suspension became the automatic response to misbehavior,” said Johanna Wald, who has worked on school discipline issues for the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School.

Wald said drugs, guns and other threatened and real school shootings have created an era of “Zero-tolerance policies” in many schools.

“Now,” she added, “we are thankfully recognizing how damaging that highly punitive approach is, especially to teenagers. What they need is to be in school, to have relationships with competent adults who can steer them in the right direction.”

The Massachusetts Teachers Association, a statewide advocacy group, takes no position on school discipline issues but several Bay State teachers denied that there is a racial component to discipline and said clearly-defined progressive punishment works best for students involved in non-violent situations.

Somerville elementary teacher Jackie Lawrence, like other educators, said teachers who work with minority students “don't see children in different colors. We see students.” And, she adds, despite a child's ethnicity, all of those students are disciplined on a progressive scale with punishment increasing for each new offense. Drug, weapons or assault violations, however, are subject to the district's zero tolerance policy, said Lawrence, who teachers in the same city where Vivas once attended school.

“A zero tolerance policy shows students and their families that there is no wiggle room for extreme behaviors,” said Lawrence, noting the need for a stricter approach when it concerns issues that threaten school safety.

Yet despite similar progressive discipline policies in other Bay State schools, the swift suspension or expulsion of students, often for minor infractions, continues unabated even though studies show that tossing a kid out of school encourages a child to drop out altogether, child advocates say.

Still, advocates and educators remain optimistic.

“Our concern is to change the process and the practices for those kids who don't commit serious offenses,said Mela, who is now spearheading two bills he hopes will reform discipline policies in Bay State schools and keep kids in class.

Sonia Chang-Diaz, Senate co-chair of the state's Joint Committee on Education, said the bills, which are aimed at preventing kids from dropping out of school, encourage school districts to reduce their reliance on expulsion and suspension as disciplinary tactics and puts some due process rights in place for students charged with misdemeanors.

It also mandates that no student be expelled for more than a year and gives teachers and administrators discretion in how they deal with unruly students. Current zero-tolerance policies, which are instituted by individual school districts based on established district-wide policy, do not require school administrators to ratchet up punishment based on the severity of an offense. This all-or-nothing approach needs to change, Chang-Diaz said.

“We need to get students back into the educational process. And we need to allow school administrators the flexibility and the authority to make decisions protecting the safety of students and staff,” she noted.

Roy Karp, chairman of the Boston Public School's Code of Conduct Advisory Council and executive director of the Civic Ed Project which fosters civic engagement in schools, said new approaches to discipline are changing the way students and administrators deal with problematic school issues.

At Curley Middle School in Boston's Jamaica Plain neighborhood, a restorative justice program, which makes kids responsible for their behavior and encourages them to peacefully solve problems, has brought a culture of respect to what was once a problem school, Karp noted.

“Suspension gives students a chance to do what they want,” he said of the free time given to students who are no longer required to attend classes. “Restorative discipline holds students to a much higher standard. We get them to think of how they harmed others. After all, it's hard to look someone in the eye and hear them say, 'I was afraid to come to school because of you.'”

Paul Andrews, director of professional development and government services for the Massachusetts Association of School Superintendents, said he supports school discipline policies but they need to be consistent, fair, and progressive so that punishment increases in severity with each new occurrence. School administrators also need to be able to use their own discretion to better resolve issues, he said, adding that parental involvement and support is also key.

“It requires the cooperation of local government, families and schools,he said. We all have to work together. We all have a responsibility to make this work.”

Otherwise, the trend in school dropout rates may mean even bigger issues in the future.

The New England Center for Investigative Reporting is a non-profit investigative reporting newsroom based at Boston University and a member of the Investigative News Network.