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Excerpted From: Theresa Glennon, The Stuart Rome Lecture: Knocking Against the Rocks: Evaluating Institutional Practices and the African American Boy, 5 Journal of Health Care Law and Policy 10 (2002) (391 Footnotes) (Full Document)
The media portrays young black men as dangerous, hostile and out of control. While many African American boys do succeed, statistics about black youth reveal serious achievement gaps between them and their Caucasian counterparts in school and high rates of arrest and referral to juvenile court. Research often focuses on family and cultural “deficits,” looking to blame higher rates of single-parent households, poverty and an oppositional peer culture for these deeply troubling statistics.
The statistics presented in this article show that some of the same social institutions charged with nurturing children actually divert many African American boys from paths to successful development. Instead, these institutions label, discipline, segregate, punish, and confine them. Too often, they crush the souls of black boys. This article explores the statistics available to confirm the negative treatment that African American boys encounter in our educational, mental health and juvenile justice systems. The data collected here supports three main conclusions. First, African American boys are much more likely to be identified as disabled or delinquent than other children, including African American girls. Second, they are more likely than other children to be placed in educational, mental health, and juvenile justice programs that exert greater external control and deliver fewer services despite identified needs. Third, these negative experiences lead African American boys to stay away from or exit these institutional settings. These statistics are stark and disturbing. Unexplained by family structure, poverty, or culture, they reveal widespread institutional and personal racism.
I chose to become a lawyer in the belief that law can be an instrument for progressive social change. Unfortunately, the hopeful era of civil rights litigation, initiated by the NAACP and culminating in Brown v. Board of Education, is over. By now, judicial protection of a still separate and unequal status quo through doctrinal developments under the Equal Protection Clause and the Civil Rights Act of 1964 is clear. Scholars have documented the deepening divide between racial inequality and formalist interpretations of civil rights law that largely help white people protect entrenched advantages. Recent analyses of civil rights laws such as Title VI of the Civil Rights Act of 1964 are apt to focus on their limitations rather than their promise. Work for racial equality, however, cannot stop.
Ideally, the racial disparities documented here would, on their own, spur educators, mental health professionals and juvenile justice officials to act affirmatively to evaluate and change the intertwining conditions of structural and unconscious racism that so negatively affect African American boys. However, given the ongoing and unchanging nature of these disparities, it appears necessary that our laws prohibiting racial discrimination be used as tools to force officials to change their institutional practices. Law invariably expresses our societal values. Thus, a turn to the legal system can be effective through the force of judicial decrees, and by the creation of social norms that value racial equality. While too often antidiscrimination law has been used to “create[ ] the illusion that racism is no longer responsible for the condition of the black underclass,” legal challenges to racial inequalities remain one part of the “multi-dimensional groundwork” in the work for racial equality.
For the programs examined in this article, the most promising legal avenue involves the federal regulations developed to enforce Title VI of the Civil Rights Act of 1964. These regulations prohibit recipients of federal funds from engaging in policies and practices that have a racially disparate impact on African American boys and other minority children. However, the right of private plaintiffs to seek redress under the Title VI regulations is under siege. A recent decision by the U.S. Supreme Court restricted access to the courts to enforce the regulations. Lower federal court decisions in some jurisdictions have gone even further, completely eliminating private parties' access to judicial relief for violations of the Title VI disparate impact regulations. These regulations are vitally important to addressing racial discrimination by our publicly funded institutions, institutions that hold great power in the lives of our youth. Advocates must therefore challenge judicial restrictions and demand that Congress keep open this vital avenue for protecting civil rights.
The analysis in this article supports the importance of maintaining access to the courts to challenge policies and practices that negatively affect African American boys and other minority children. This article re-evaluates Title VI of the Civil Rights Act, and in particular its implementing regulations, to explore its promise as an effective tool to require the social institutions of childhood to effectively educate and aid African American boys. After documenting the dramatic disparities in the treatment of African American boys, this article examines doctrinal developments in the contexts of disability, language, minority and gender discrimination to suggest that a more vigorous approach to Title VI can help protect African American boys from the pervasive discrimination they face in our social institutions. Advocates have been breathing new life into Title VI by using it to attack structural racism in the form of school funding. I suggest that advocates also focus on the biased practices within schools, mental health and juvenile justice programs that further unconscious racism, and challenge the interrelated practices of structural and unconscious racism. Advocates must work both to ensure access to the courts to challenge policies and practices that have a racially disparate impact on minorities and to ensure that private litigants effectively employ the disparate impact regulations to diminish the harsh disparities described here.
Finally, this article outlines more recent legislation that responds to the striking disadvantages black youth experience in our education, mental health and juvenile justice systems and suggests using those provisions to advocate change in institutional practices as well as placing more such requirements into law through legislative advocacy.</p
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This Nation has tolerated a shockingly high level of disparate treatment of racial and ethnic minorities. As this article clearly shows, African American boys have been excessively subjected to practices in our public education, mental health and juvenile justice systems that label, discipline, segregate, punish and confine them. When African American boys enter our schools, mental health and juvenile justice programs, the programs they receive should be equally effective and designed to enable them to achieve the academic success, good mental health and rehabilitation that are the goals of those programs. In order to accomplish this goal, advocates should argue for a strong interpretation of the Title VI disparate impact regulations to clearly attack the unstated racial norms of these institutions and the accompanying structural and unconscious racial discrimination that so impede African American boys. At a time when access to the courts to enforce the Title VI disparate impact regulations is under siege, advocates must act forcefully to protect that access and to utilize the regulations to their fullest in the service of racial equality.
Associate Professor of Law, James E. Beasley School of Law at Temple University.
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