Excerpted From: Nicole Tuchinda, Disproportionate School Brutality upon Black Children, 112 Kentucky Law Journal 113 (2023-2024) (453 Footnotes) (Full Document)

NicoleTuchinda.jpegThe ways in which police officers restrained and murdered George Floyd and fatally beat Tyre Nichols are eerily similar to the ways in which state agents wrest control over the movements and sanctity of Black children's bodies in public schools. Just like police disproportionately brutalize Black bodies on American streets, police and other state agents disproportionately brutalize Black bodies behind the closed doors of K-12 public school buildings. In public schools, government employees inflict disproportionate and racialized injury, control, trauma, terror, and death upon Black children through assaults, solitary confinement, inappropriate handcuffing and arrests, and other excessive applications of physical force. As I stated in a previous article, the agents of such violence are primarily “teachers, principals, and security guards, [who are] given authorization by law to apply such force upon children for purposes of 'punishing,’ 'educating,’ 'controlling,’ 'disciplining,’ and 'maintaining order’ in public schools.”

Glimpses of the hidden crisis occasionally reach the public through the viral release of videos or brief news coverage. Examples include a video of a White school resource officer (SRO) in South Carolina knocking Shakara Murphy, a 16-year-old Black girl, and her “desk over as he grabbed her by the neck and shoulders, pulling her from her chair before throwing her across the room.” Shakara's mistake was refusing to give her cell phone to a teacher. In New York, a principal forced seven-year-old Hasheem Welch to the ground and then punched and kicked him in the stomach after he failed to remove his hoodie as instructed and ran from the principal. Six-year-old Kaia Rolle threw a tantrum in a Florida classroom, causing an SRO to “handcuff her, put her into the back of his cruiser, and [drive] her to a juvenile detention facility.” A principal in Seattle Public Schools repeatedly locked homeless, eight-year-old Jaleel Williams for hours and sometimes entire days in an outdoor, fenced enclosure that staff called “the cage.” Jaleel “ate his lunch on a concrete floor, in view of other students, [who were primarily White,] who played outside the enclosure.” A “therapeutic hold” restraint was used upon teenage Corey Foster because he “refused to stop playing basketball,” resulting in his death.

Rarely does the public hear about the long-term effects of such violence upon survivors. A documentary reveals that immediately after being thrown and dragged by the SRO as described above, Shakara was arrested for “disturbing school.” The SRO's actions fractured her wrist. It took a year before charges were dropped. Shakara withdrew from her high school because she no longer felt safe there. She also became “depressed and tried to commit suicide” by hanging.

Similarly, investigation shows that before her arrest for throwing a tantrum, Kaia, described above, enjoyed singing and dancing in front of an audience and hugging strangers. Now, she suffers from severe post-traumatic stress disorder, separation anxiety, and oppositional defiant disorder. She seldom smiles. People wearing police uniforms fill her with fear. “We know she's in there,” observes her grandmother, “[w]e just don't know how to bring her out.”

Jaleel reported feeling afraid and “trapped in a cage” when he was repeatedly locked inside the fenced enclosure at school. He had nightmares about “the cage” afterwards. According to his mother, Jaleel's school experiences compounded his trauma, which include experiencing abuse and witnessing domestic violence at home. She said that the school's treatment “scarred” Jaleel and “contributed to his [recent] admittance to two psychiatric hospitals.”

The violence experienced by each of these children likely felt very personal and isolating, but such violence is widespread, structural, and cultural, and it is an extension of a long history of violence upon Black children. These children are just some of tens of thousands--likely hundreds of thousands--of Black children violated by adults at public schools each year. Black children experience the worst consequences of policies and laws that permit the violent subordination of children by adults in schools. Specifically, Black children bear the brunt of laws that authorize corporal punishment, seclusion, restraint, and police brutality in K-12 public schools. As detailed in Section IB of this Article, more than 222,000 incidents of school brutality are documented each year--an undercount--and Black children experience 2.5-3.66 times the level of school brutality that White children experience.

As I asserted in a previous article, “[s]chool brutality is the excessive ... use of physical force by governmental employees upon schoolchildren.” The disproportionate brutality is not a response to disproportionate misbehavior by Black children, however. Studies show that Black children do not commit more offenses than their White peers.

School brutality has disproportionately harmed children of color for decades, as highlighted by viral videos, but little has been done to stop the imbalance. Such disproportionate brutality is an example of how racial inequality persists through what Eduardo Bonilla-Silva calls the “continued existence of a racial structure” in society. Such structures that maintain “contemporary racial oppression 'are increasingly covert, are embedded in normal operations of institutions, avoid direct terminology, and are invisible to most Whites.”’ Accepting or continuing the status quo, however, legitimizes the interests and biases of those who perpetuate the oppression while denying the reality of its victims. Becoming desensitized to the violent experiences of Black children in public schools makes such reality normal, merely “banal barbarism.” This Article seeks to end that normalization.

Sadly, disproportionate state violence upon Black children by the public school system is just one example of a larger, national phenomenon of disproportionate state monitoring, regulation, punishment, and traumatizing of Black Americans. Scholarship has increasingly documented how government systems, including the child welfare system, the prison-industrial complex, and public benefits systems, have disproportionately targeted and harmed Black individuals, families, and communities.

This Article explores the politics of one form of state-inflicted trauma upon Black children. It asks: of all places, why are public schools locations where trauma upon children, especially Black children, is permitted? Is disproportionate school brutality an example of trauma that, as Staci Haines theorizes, is “deeply rooted in our culture and society, reinforced by a set of beliefs, norms, and policies that are structural and hierarchical in nature”? How does the law provide a structure that preserves the disproportionate traumatization of Black children by public schools? How can Black children be emancipated from that structure?

Within the context of scholarship on disproportionate school discipline of Black children, this Article highlights what the school-to-prison pipeline lens tends not to focus upon. The school-to-prison pipeline describes education and public safety policies and practices, including zero-tolerance policies, suspension, expulsion, and arrests at school, that push primarily children of color and children with disabilities out of the classroom and into the streets, the juvenile system, or the criminal law system. Much valuable literature describes the ways in which K-12 public schools punish Black students more harshly than White students through practices that exclude students from the classroom. But the pipeline lens typically does not focus upon the disproportionate physical mistreatment of children of color in public schools, a phenomenon that causes racialized trauma, pushes children of color towards prison, and requires more attention.

Why focus on the laws and policies that affect children's bodies? As Ronald L. Jackson asserts, “[B]lack bodies have become surfaces of racial representation .... [R]ace is about bodies that have been assigned social meanings.” Similarly, Isabel Wilkerson contends that Americans are divided into a caste system on the basis of their bodies' physical appearance, where the “signal of rank” is race.

[This caste system] embeds into our bones an unconscious ranking of human characteristics and sets forth the rules, expectations, and stereotypes that have been used to justify brutalities against entire groups within our species .... We may mention 'race,’ referring to people as [B]lack or [W]hite ... when what lies beneath each label is centuries of history and assigning of assumptions and values to physical features in a structure of human hierarchy.

Analyzing laws for their risk to Black bodies is powerful because the body is concrete. Harm to the body is less disputable than harm to the mind or the soul. Injured bodies help to highlight when good intentions have failed and mistakes have been made. Further, violence to bodies is a powerful language that communicates many things. It communicates who does not belong and who is considered unimportant, disposable, unaccepted, dangerous, inferior, and unsightly. It communicates lovelessness. Such communication is so effective that violence to bodies is a primary method by which people traumatize one another, causing lasting shame--the sense that oneself is bad, wrong, stupid, or tainted; doubt; embarrassment; distrust; anxiety; depression; and other mental and physical harm. Analysis of racial equity in education and, specifically, school discipline, is incomplete without analysis of “body politics.”

Disproportionate school brutality demonstrates Ta Na-hesi Coates' observation that White supremacy denies Black Americans the “right to secure and govern [their] own bodies.” Disproportionate school brutality has the unique significance of perpetuating coercive structures and racialized trauma arising from state-sanctioned slavery and Jim Crow segregation. Specifically, as described in Sections III(A) and (B), legalized violence and fear of such violence were the principal tools by which White supremacists subordinated and controlled Black people during slavery and the Jim Crow era. They were also the primary tools by which White supremacists delayed desegregation.

These tools are now preserved and concealed by facially race-neutral laws and policies that permit school “corporal punishment, seclusion, and restraint”-- euphemisms for assault and solitary confinement--by teachers and school administrators and unrestrained aggression by law enforcement officers and security guards. Almost no legal structures exist to stop these state agents from acting with conscious or unconscious racial bias. As a result, disproportionate state violence upon Black children in schools perpetuates the systemic traumatization, through legalized physical abuse, of Black children that originated during slavery, keeps them from receiving a quality education, and contributes to the health toll of racism. Such violence is a barrier to social change. And it is a structure within American education that maintains a racial hierarchy that denies Black humanity.

Applying the health justice framework, this Article describes how the racialized trauma of disproportionate school brutality harms and subjugates the health and educational functioning of Black children today. Disproportionate school brutality denies its victims health justice, which requires that “everyone has a fair and just opportunity to be healthy” and “everyone can attain their full potential for health and well-being.” It contributes to the health disparities impairing the educational success and socio-economic advancement of Black children. The health justice framework is a theoretical framework that recognizes the significance of the conditions in which people live, learn, work, and grow up in delineating individual and public health (called “social determinants of health”). This framework helps to establish that disproportionate school brutality upon Black children is a social determinant of health that must be addressed before Black children can experience health justice.

School brutality is an adversity--a racialized, discriminatory form of community violence--constituting an adverse childhood experience (ACE), which, in turn, can be traumatic because it can cause the long-term harms of disability, disease, and early death. As detailed in this Article, disproportionate school brutality is a form of systemic and structural racism that “expose[s] people of color to health harming conditions and that impose[s] and sustain[s] barriers to good health and well-being.” Thus, a major reason for eliminating all forms of school brutality for all children is the need to end a legal and social structure that sustains racist violence and educational and health inequity for Black children.

As the U.S. Supreme Court recognized in Brown v. Board of Education, “education is perhaps the most important function of state and local governments.” Rather than merely replicating and reinforcing societal biases and hierarchies, American public schools have the opportunity to maximize the achievement of all students by invalidating racial hierarchy and replacing it with a culture that values every child equally, seeks to heal racial trauma, and enables every child to experience hope, belonging, dignity, and safety. The Supreme Court held that unequal education, such as education involving the separation of children of similar age and qualifications solely because of their race, “generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” “A sense of inferiority affects the motivation of a child to learn,” thereby delaying “the educational and mental development of [Black] children and [depriving] them of some of the benefits” of a racially equitable school system.

Accordingly, when Black children are assaulted, confined, and arrested multiple times more often than White children at school solely because of their race, the government generates a feeling of inferiority that causes lasting educational and developmental harm and deprives Black children of the benefits of a racially just school system.

Unfortunately, few legal structures exist to end the disproportionate school brutality upon Black children, as most states authorize at least some form of school brutality in public schools. Statutes of only a few states prohibit discriminatory school discipline, and federal and constitutional law do not sufficiently support claims of discriminatory school brutality by children and parents. Only when school brutality is abolished for all children can this racialized, systemic trauma maintained by the government end.

[. . .]

“It does students no good to be able to go to school if their school is a place where they can be abused and traumatized with impunity by the administration.”--Mikki Kendall

As evidenced by our nation's desensitization to it and the continued legacy of slavery that perpetuates it, disproportionate school brutality is a type of systemic racism that is “so embedded in systems that it often is assumed to reflect the natural, inevitable order of things.” Supporting this status quo are constitutional, federal, and state law, structures, and resources to enforce those laws, including the limited resources of the DOJ to enforce Title VI of the Civil Rights Act of 1964, all of which are insufficient to stop disproportionate school brutality. Modern anti-discrimination law must move away from unduly focusing on intentional discrimination by individuals and instead address systemic racism, intentional or not, which “places people of color at a disadvantage in multiple domains affecting health in ways often more difficult to recognize than explicit interpersonal racism.”

Disproportionate school brutality is a type of state-inflicted racial inequity that maintains the socioeconomic and health harms of “overtly discriminatory practices, policies, laws, and beliefs” established during slavery. Disproportionate school brutality operates largely invisibly and often unconsciously because it is entrenched in historical systems and structures that still have power, including White supremacist notions of Black inferiority and the traditional belief that corporal punishment of children is acceptable. This means that disproportionate school brutality will continue to subjugate Black Americans unless our society sees it as a problem and eliminates it. In particular, as public school teachers and administrators, education advocates, and lawmakers increasingly receive training to become trauma-informed, they must remember that schools themselves can inflict racialized trauma, and such trauma must end.

As the U.S. Supreme Court held in Wisconsin v. Yoder, “[t]he child is not the mere creature of the State.” When a state treats public school children in a way that is unsafe, not educational, and harms their health and development, the state unreasonably interferes with the fundamental liberty rights of parents, guaranteed by the Fourteenth Amendment's due process clause, to direct their children's upbringing and education. It is time to liberate Black parents and their children from the legacy of slavery by ending fear that Black children's bodies will be violated by public schools.

Assistant Professor of Law and Academic Director of the Health Law Program, Loyola University New Orleans College of Law