Parent Category: School-to-Prison Pipeline
Category: Disciplinary Alternatives
excerpted from: David Simson, Exclusion, Punishment, Racism and Our Schools: a Critical Race Theory Perspective on School Discipline, 61 UCLA Law Review 506 - 563 (January, 2014) (279 Footnotes).
Education policy reflects philosophical judgments about the kinds of social outcomes, and indeed the kinds of people that society deems desirable. Educational philosophy, in this respect, represents society's self-conception. The capacities and competencies society inculcates in its children--and just as important, those it does not--reveal a society's ultimate vision of itself.
[W]e should be concerned, not with the meanings associated with conduct, but rather with the meanings associated with race itself.
The use of exclusionary discipline policies in American schools has become increasingly prevalent over the last three decades. Before the 1960s, schools used corporal punishment and public embarrassment to discipline students. But with the growth in student population caused by the entry of the baby boom generation into American schools, and the influence of the civil rights and anti-Vietnam War movements on people's willingness to engage in civil disobedience, out-of-school suspensions and expulsions became more prevalent. In the late 1970s and early 1980s, U.S. Supreme Court decisions such as Goss v. Lopez caused school policies to shift in favor of in-school suspensions. These decisions instituted due process protections for students, which substantially restricted school administrators' discretion in implementing exclusionary discipline policies. In the late 1980s to early 1990s, schools once again shifted toward a heavy reliance on out-of-school suspensions when they began to institute the punitive zero tolerance policies that are prevalent in American schools today.
*509 The move toward zero tolerance policies was initially a response to fears over increasing violence, drug-related problems, and gang activity. Eventually, the Gun-Free Schools Act of 1994 and its later versions inscribed these harsh policies into federal law by conditioning federal funding on mandatory one-year expulsions of students who committed specified firearm offenses. Though the federal call for mandatory expulsion was limited to specific firearms and allowed for some discretion in application of the policy, many states have expanded the scope of their zero tolerance policies widely beyond this initial reach. Today, the potential applications of zero tolerance policies are almost endless, varying from state to state and even school to school. The broad implementation of these policies across the nation has resulted in numerous stories of nonsensical applications of the policies. Most alarmingly, minority youth, and especially African American youth, are disproportionately disciplined under this punitive regime and suffer most harshly from its consequences.
Yet "in the light of the exceedingly limited rights of public school students facing school discipline," punitive school discipline policies have survived attack *510 via litigation almost unscathed and likely cannot be challenged effectively in the courts on a broad scale moving forward. As a general matter, courts usually grant school officials a large amount of discretion in handling disciplinary problems at their schools and "tend to defer to school officials when it comes to disciplinary matters" except in extreme circumstances. Furthermore, federal constitutional and statutory law is not particularly supportive of far-reaching challenges to punitive school discipline policies.
Plaintiffs can challenge punitive school discipline policies under either substantive or procedural due process theories under the Fifth and Fourteenth Amendments to the U.S. Constitution. Such challenges claim that a student's right to an education has been infringed either without sufficient substantive justification or without sufficient procedural protection.
Though substantive due process challenges once stood a fighting chance in the courts, the Supreme Court greatly reduced prospects of their success in San Antonio Independent School District v. Rodriguez, which ruled that education is not a fundamental right protected by the Constitution. Therefore, plaintiffs can successfully challenge punitive school discipline policies and their applications only when they can "show an extraordinary departure from established norms that is wholly arbitrary." If the school "provides some reasonable justification for its policy or decision, it will likely withstand judicial scrutiny," and, in light of the large amount of discretion courts generally grant to schools in matters of educational policy, courts will likely find reasonable justifications for most instances of harsh discipline.
*511 Procedural due process claims are also unlikely to succeed, as the procedural protections that schools must provide to students who are suspended under a punitive disciplinary policy are minimal. Furthermore, procedural protections do not strike at "the underlying problem--namely, the overarching use of punitive discipline as the primary mechanism for addressing problematic behavior." Thus, procedural due process claims can prevent only the most egregious practices by school districts because most schools will simply "provide the basic due process requirements and summarily discharge students."
Recognizing that challenges to punitive school discipline policies as such are not likely to succeed, plaintiffs might attempt to challenge these policies under the Equal Protection Clause of the Fourteenth Amendment or under Title VI of the Civil Rights Act of 1964 for their racially disproportionate impact. Here too, however, Supreme Court and lower court rulings have made successful legal challenges highly unlikely, even if punitive discipline policies disproportionately affect racial minority students in a particular case.
With regards to the Equal Protection Clause, the Supreme Court established in Washington v. Davis that a successful challenge to an alleged racially discriminatory state action must include a showing of discriminatory intent or of discriminatory purpose by the decisionmaker. Courts have subsequently ruled that this requirement is satisfied only when "the decisionmaker . . . selected or reaffirmed a particular course of action at least in part because of,' not merely in spite of,' its adverse effects upon an identifiable group." While courts may consider factors other than direct evidence of discriminatory intent in determining whether the intent requirement has been satisfied--such as discriminatory impact so large as to be "unexplainable on grounds other than race"; the historical background of a decision; the sequence of events leading up to the decision, especially when there have been departures from usual procedures; or applicable legislative or administrative history types of evidence will either be difficult to obtain [in school discipline *512 cases] or will not be influential enough to persuade a court that a school or district has violated the Federal Equal Protection Clause" even when clear statistical disparities in suspension numbers exist. Courts typically require some evidence that similarly situated whites were treated differently from minority students and are very stringent about what kind of evidence they will accept to fulfill this requirement. All of this makes a successful claim under the Equal Protection Clause highly unlikely.
Claims under Title VI are also unlikely to succeed. For one thing, the Supreme Court has interpreted the statute itself to prohibit only intentional discrimination. Courts implementing Title VI proceed under a similar analysis in evaluating proof of actionable discriminatory intent as they do under the Equal Protection Clause, and thus it is similarly difficult for plaintiffs challenging punitive school discipline policies to show such intent. While there are administrative regulations implementing Title VI that, in theory, allow for claims based on a disparate impact theory without a showing of discriminatory intent, the Supreme Court held in Alexander v. Sandoval that there is no implied private right of action to enforce such regulations. This means that private plaintiffs must base any challenge to a school's policy on the statutory language of Title VI--which does not allow for a disparate impact challenge but instead requires a very difficult showing of discriminatory intent--and cannot base their lawsuits on regulations implementing the statute--which do allow for a disparate impact challenge without a showing of discriminatory intent. This leaves the federal government as the sole enforcer of Title VI regulations. Yet the agency in charge of doing the enforcing--the Office of Civil Rights within the *513 Department of Education--"does not appear to regularly apply the adverse impact doctrine in complaint investigations and determinations" but rather seems to "process complaints under the more rigid intentional discrimination standard."
While state constitutions and statutes might afford greater protections for students' educational rights, and thus potentially provide a more useful basis for individual lawsuits, these avenues for challenging punitive school discipline policies reach only as far as the states in which they are enacted. Litigation based on such laws could provide useful relief for local beneficiaries, but it will not address the root cause of a nationwide punitive approach to disciplining students.
Notwithstanding the difficulty of challenging punitive school discipline policies in the courts, this Comment argues that such policies need to be replaced. These policies are not only ineffective in creating an environment conducive to the academic and social development of all children but also contribute to many pervasive and systemic problems that disproportionately affect minority communities and African American youth in particular.
To illustrate this point, Part I presents the main societal problems that have been associated with the increased use of zero tolerance in American schools. It presents the latest data on school discipline outcomes nationwide and compares such data with earlier studies on zero tolerance school disciplinary policies to demonstrate that little progress has been made toward the goal of creating both safe and effective learning environments for American children. In this context, Part I also highlights the troubling numbers relating to the treatment of minorities under the regime of zero tolerance policies in schools. It then takes this empirical overview and situates today's punitive school discipline policies within the discourse on a number of widely acknowledged school-related social issues that, once more, disproportionately affect minority communities: the school-to-prison pipeline; high school dropout rates; the push-out phenomenon; and the criminalization of schools.
Because a comprehensive remedy to these systemic issues cannot be expected to come from efforts in the courts, alternative strategies to soften and to reverse the negative impact that punitive school discipline imposes on students, and especially minority students, will have to based on voluntary measures--measures that can be implemented based on the very discretion and educational *514 judgment of local educators that has partially insulated zero tolerance from broad legal challenge. In developing such effective measures, educators and policymakers need a better understanding of the intricacies of the process that is supporting the punitive status quo of school discipline in the first place.
Accordingly, Part II uses the bleak picture of racial disproportionality in school discipline developed in Part I as a point of departure and sets forth a theoretical framework based on concepts developed in the field of Critical Race Theory, which can help explain why such disproportionality exists. It argues that punitive school discipline policies serve as a tool that perpetuates, reenacts, and polices the boundaries of deeply engrained American racial hierarchies.
In construing this theoretical framework, Part II takes up the notion of racial stigma. It surveys the history of American race relations, with a particular focus on how African Americans were branded as inferior, not truly belonging to the American social fabric, and a threat to white privilege and to white control. It then examines how stigma interacts with the social psychology phenomenon of implicit bias and how both processes influence and create the troubling phenomenon that minority students, and especially African American youth, are disproportionately disciplined for subjective offenses such as defiance and disrespect for authority.
Racial stigma and implicit bias are then linked to normative baselines and the so-called acting white phenomenon. I argue that stereotyping and implicit biases arising from a long history of racial prejudice and dominance continue to infuse seemingly objective standards of what is considered appropriate behavior as well as the practices--such as punitive school discipline--that are used to enforce such standards. These practices, again, lead to disproportionate disciplining of minority students, especially for low-level behavioral offenses.
Finally, Part III offers Restorative Justice as an alternative to the current disciplinary framework and argues that Restorative Justice-based practices are more helpful in addressing the issues described in Parts I and II than current punitive policies. Part III details the particular methods employed by Restorative Justice programs in schools and marshals data from these schools to bolster the claim that under a Restorative Justice framework it is possible to ensure school safety and a positive school environment while at the same time showing genuine concern for the problems of both victims and perpetrators of inappropriate juvenile behavior as well as the victims of continuing racial bias. Part III argues that Restorative Justice-based disciplinary policies are consistent with core principles of Critical Race Theory and are more conducive to creating a *515 nurturing, safe, and inclusive school environment because they address the root causes of problematic juvenile behavior, broaden the understanding of the harms that result from such behavior, expand the community of stakeholders that is involved in addressing issues of misbehavior at school, and give a real voice to all participants in a disciplinary incident.
* * *
Punitive approaches to school discipline such as zero tolerance policies have failed America's youth. They are robbing students of needed educational opportunities and are contributing to a wide variety of social problems. Not only that, but racial minorities--especially African Americans--who are already the most vulnerable to societal maltreatment, are hit hardest by such policies. This is not surprising given the long history of stigmatization, dehumanization, and prejudice that American society has directed toward such minorities. Improper racial stereotypes and implicit bias continue to distort our perception and evaluation of others' behaviors, and thus negatively affect our decisionmaking regarding how to respond to instances of what the majority considers inappropriate behavior. Such processes seem to be at work in disciplinary *563 decisionmaking in this country's primary and secondary schools, and have led to serious negative and disproportionate treatment of African American youth, kicking them out of schools as if they do not belong there in the first place. This needs to change. One way it could change is through the implementation of Restorative Justice principles into the ways in which schools administer their disciplinary codes. Restorative Justice has shown promise not only in reducing the overt manifestations of punitive policies, such as suspension numbers, but also in exhibiting conceptual strengths that can counter the processes underlying racial discrimination in the United States more broadly. Restorative Justice deserves a chance to help remediate the damage caused by zero tolerance policies and to undermine the sources of racial conflict that have plagued this nation for too long.
Parent Category: School-to-Prison Pipeline
Category: Disciplinary Alternatives
Amy C. Nelson
Amy C. Nelson
From: Amy C. Nelson, The Impact of Zero Tolerance School Discipline Policies: Issues of Exclusionary Discipline, 37(4) NASP Communiqué (December 2008) http://www.nasponline.org/publications/cq/mocq374impact_zero_tolerance.aspx (Last Visited: April 13. 2014)
In 1977, a Safe School Study conducted by the U.S. Congress raised awareness of school violence and caused a wave of actions still in effect today. In their examination of American schools, they found that 282,000 students reported incidences of assault or harassment each month. Students were not alone; over 5,000 teachers reported being assaulted each month as well.
What did this report claim are the contributors to school violence? Casella (2001) pointed out that the Safe School Study made four important assertions. First, crime in the neighborhoods surrounding schools has been identified as a large contributor to violence in the schools. Violence from the outside is being brought in behind school walls. Second, large class sizes also contribute. It is harder for teachers to manage large classrooms resulting in less student monitoring. Third, when school administration does not consistently enforce school policy, violence proliferates. Students pay less attention to school rules and, therefore, do not adhere to them. Devine (1996) refers to this as the “marshmallow effect.” A lax school policy causes students to not take authority seriously. Lastly, the report claimed that the discipline policies established in many schools was discriminatory. As a result, more violence erupts in response to an unjust system.
School Violence Policies are Discriminatory?
Some now argue that school discipline policies, in response to violence issues, are biased and actually make matters worse. Marxist and critical theorists have addressed how biased systems contribute to school violence (Casella, 2001). Essentially, views of violence are shaped by class experiences and the neighborhood in which one lives. To many, violence is viewed as a consequence of poverty. Duncan and Brooks-Gunn (2000) found that poor children are 2.2 times more likely to experience a violent crime. This implies that poor neighborhoods are exposed to more violent episodes, which in turn, affect the school culture in those areas.
Immigrants and minorities have been at the forefront when it comes to stereotypes with regard to violence (Casella, 2001). Common attitudes are often racist and classist. Many individuals believe that only minorities and the poor commit violent acts. Some theorists argue that school violence is a protest against the inequities in the system, such as unequal distributions of educational funds and a curriculum that only caters to White middle-class individuals. Therefore, students are rebelling against schools, and each other, in order to voice their feelings of injustice.
Fenning and Rose (2007) also attribute high rates of school suspension and expulsion rates to racism and bias, specifically institutional racism. School policies are often designed by individuals raised with White middle-class values and the assumption is made that all students are raised with a similar perspective. In their research, Fenning and Rose discovered that minority students were more likely to be suspended for nonviolent issues, such as class disruption and disrespecting teacher authority. Thus, these students are more likely to be punished because of teacher lack of behavior management, lack of connection with the teacher or school, or unclear classroom rules. Yet, when punishing students, schools fail to examine whether student disrespect could be the result of school factors as well. Delpit (1995) also believes that cultural differences between students and teachers cause increases in referrals, including discipline and special education, because of biases held by teachers. Delpit argues that schools are often structured from a White middle-class perspective and if teachers are not direct and clear in their expectations, students who do not come from a White or middle-class background are at a disadvantage. Students who are less knowledgeable of the rules are then more likely to be referred to the office and receive punishment, when in reality it was a result of cultural miscommunication.
Is Zero Tolerance Effective?
Despite legislative support for zero tolerance, the policy fails to show effectiveness (Skiba, 2004; Casella, 2003). Skiba (2004) argues that the assumptions underlying zero tolerance have never been met and its purpose was never fulfilled. Initially, it was designed to be part of a comprehensive prevention program. However, many schools focused only on the punitive aspect and failed to implement prevention programs. Zero tolerance was not intended to work in isolation.
Casella (2003) also examines the effectiveness of zero tolerance policies among urban students. Although research has found that zero tolerance is related to an improvement in the rates of violence in schools, he claims that minority students are at a disadvantage as a result of this kind of policy. Latino and African American students are more likely to suffer the punishments of zero tolerance because of issues of institutional racism previously mentioned. Specifically, Latino and African American students are more likely to live in poverty and reside in dangerous neighborhoods. Consequently, these students are more likely to be punished and are less resilient to the social consequences of suspension and expulsion. Casella finds that zero tolerance only punishes those who need the most help: the poor, underachieving, socially isolated students coming from violent homes and neighborhoods. So one may argue that school violence rates are decreasing, but troubled students are out on the streets. Casella states:
[F]or some, zero tolerance adds another risk factor to lives that are already overburdened with risk factors. Although some students may have the support and know-how to wrangle and maneuver their way back to success after an expulsion or suspension, other students cannot. (p. 881)
Experts are also stating that exclusive discipline has negative side effects that cannot be ignored. Stinchcomb, Bazemore, and Riestenberg (2006) argue that, “increasingly well-documented side effects of this remedy may be worse than the cure” (p. 128). They review the work of Costenbader and Markson (1998) who found that the side effects of in-school and out-of-school suspension were harmful. For example, Costenbader and Markson contend that students in these contexts exhibited increases in socioemotional behavioral issues, such as withdrawal and avoidance of school staff and stigmatization among peers, and decreased academic performance. Suspensions, in essence, did more harm than good.
School to Prison Pipeline
Students who experience excessive suspension and expulsion are more likely to become part of the school to prison pipeline (Fenning & Rose, 2007). Many authors are now examining the issue of the school to prison pipeline and trying to understand how students who drop out (or are pushed out) of high school are more likely to enter the prison system (Fine, 1991). Push out is a term that is used to describe students who dropped out of school because of actions or barriers put up by their school. Their school might have committed actions that made the student feel like they did not belong in school, were not intelligent enough to finish, or that school was a negative and stressful place. Many school psychologists have probably experienced a teacher who was out of line and called a student “stupid” or interacted with them in a harsher way than necessary, making them feel alienated. These students are more likely to drop out of school because they lack connection with school personnel and feel negative about themselves every time they come to school.
The issue of the school to prison pipeline becomes important as we consider the disproportionate effect of suspension and expulsion on ethnic and socioeconomic minorities and the well-known issue of the disproportionate number of African American males in the criminal justice system. When students are not in school, they are most likely subject to negative influences in their neighborhoods. For many students, their school is the safest environment for them. When they are not permitted in their schools they are left to the devices of the community, which is not always the most positive influence. As a result, students may become involved in possible illegal activities, get arrested, and go to jail.
It is difficult to believe that schools could have something to do with the high numbers of minority students going to prison or getting incarcerated. Regardless, schools need to consider how their school discipline practices are biased, and in some cases discriminatory. As school psychologists, we are in a unique position to lead system-wide efforts in changing school policies to make them fairer for all students. Until the issue is raised, schools will continue to deny their hand in pushing students who do not “fit in” with the system out of schools.
Amy C. Nelson is a doctoral student in the Urban Education/School Psychology program at the University of Wisconsin-Milwaukee.
Casella, R. (2003). Zero Tolerance policy in schools: Rationale, consequences, and alternatives.
Teachers College Record, 105, 872–892
Casella, R. (2001). Being down: Challenging violence in urban schools. New York, NY: Teachers College Press.
Costenbader, V., & Markson, S. (1998). School suspension: A study with secondary school students. Journal of School Psychology, 36, 59–82.
Delpit, L. D. (1995). Other people’s children: Cultural conflict in the classroom. New York, NY: The New Press.
Devine, J. (1996). Maximum security: The culture of violence in inner-city schools. Chicago, IL: The University of Chicago Press.
Duncan, G. J., & Brooks-Gunn, J. (2000). Family poverty, welfare reform, and child development. Child Development, 71, 188–196.
Fenning, P., & Rose, J. (2007). Overrepresentation of African American students in exclusionary discipline: The role of school policy. Urban Education, 42, 536–559.
Fine, M. (1991). Framing dropouts: Notes on the politics of an urban public high school. New York, NY: State University of New York Press.
Skiba, R. (2004). Zero Tolerance: The assumptions and the facts. Education Policy Briefs, 2(1), 1–8
Stinchcomb, J., Bazemore, G., & Riestenberg, N. (2006). Beyond zero-tolerance: Restoring justice in secondary schools. Youth Violence and Juvenile Justice, 4, 123–147.