Abstracted From: Samantha Buckingham, A Tale of Two Systems: How Schools and Juvenile Courts Are Failing Students , 13 University of Maryland Law Journal of Race, Religion, Gender and Class 179 (Fall, 2013) (115 Footnotes)
Children are prosecuted in juvenile delinquency court based on their misconduct at school. This double punishment by both school and court is developmentally unsound. Double punishment of school-children backfires because it is untimely, stigmatic, and unresponsive to the behavior. Harsh punishment in school and court appears unfair to children, families, and communities when these punishments are disproportionately applied to marginalized groups of students, like those students who are disabled and belong to racial and ethnic minority groups. Ultimately, double punishment disincentivizes students to respect the law, perpetuating delinquency.
As a former high school teacher and a juvenile defender, I have taught and represented many children caught in what has been termed the school-to-prison pipeline. As a public defender and now as the co-director of a juvenile justice clinic, I have represented my juvenile clients' penal interests in delinquency court in collaboration with education attorneys using a holistic model of representation. Through these experiences, I have become sensitized to the considerations and inquiries that the school and juvenile court systems should be making into the individualized circumstances of the youth in their care.
I have come to believe that addressing student misbehavior in school is the best, and should be the only official response to most offenses students commit at school. Schools are best poised to address and correct student behavior problems with developmentally appropriate responses that teach and promote good citizenship. Unfortunately, far too often schools are excluding students for misbehavior rather than utilizing developmentally appropriate, evidence-based practices. Further, schools are referring students who experience behavior problems to juvenile delinquency courts for prosecution. This article examines ways in which court referrals can do more harm than good, undermining the government's goal of creating responsible and law-abiding citizens.
Children are ushered into the delinquency and criminal systems through both the condition of their schools and the official responses to their behavior at school. This paper will focus on a direct pathway through which children enter the court system--delinquency court referrals of students for misconduct committed at school. School-based court referrals are the largest source of the growing prosecution of youth for low and mid-level juvenile offenses. Many of the students sanctioned by school are doubly punished when they are then arrested in school and referred to the juvenile court system.
In Part II, this Article will address two important developmental problems with referrals to courts for students' misbehavior at school: timing delays and double punishment. The students who are most frequently disciplined in school and in court are the most vulnerable among us--socio-economically disadvantaged, minority, and learning disabled students. Part III will examine the impact of delays and multiple punishments through the lens of adolescent development and will draw lessons from the failure of zero tolerance policies. Official responses by juvenile delinquency court backfire when those sanctions are viewed as unfair and overly harsh by children, their families, and their communities.
In Part IV, this Article will make several key observations and recommendations. To protect the rights of students, education attorneys should be involved at the earliest point of student contact and collaboration between education attorneys and juvenile court defenders should be fostered. To reduce juvenile delinquency court referrals, schools, prosecutors, and courts should institute policies to disfavor delinquency referrals when a student's misconduct has been addressed at school or is a manifestation of his or her disability.
* * *
The sheer number of delinquency court referrals coupled with the disproportionate impact that court referrals have on youth of color and the disabled requires that schools, prosecutors, and courts examine and revise their court referral practices. Today, in an era characterized by fiscally conscious reform and developmentally sound practices for youth, the U.S. is positioned to re-evaluate the education and delinquency court policies that created the phenomenon termed the school-to-prison pipeline.
Court referrals for student misconduct at school have created a legal regime with overly harsh sanctions featuring developmentally unsound time delays and the double punishment of youth. Harsh school sanctions such as school exclusion have a negative and stigmatizing impact on youth. Referring children to delinquency courts also has a negative impact on their self-image, self-esteem, and mental health. Further, children's sense of fairness and justice is compromised when they are severely punished by the school and doubly punished by the court, particularly when they see that punishments are disproportionately applied to children from marginalized communities. This impact reaches beyond the child excluded to impact his or her family and community, undermining perceptions of the legitimacy of the legal system.
Responses to misbehavior at school should be informed by adolescent development and should utilize community-based and evidence-based practices implemented at school and with the involvement of the child's family. Knowledge of adolescent development should impact response: developmental stages of adolescence, individual factors such as the impact of the individual child's life outside school, and cultural and school factors. Evidence-based practices are those strategies that have proven effective at achieving the goals of safety in school, student achievement, long-term school success, and reduced future behavior incidents.
Education attorneys should be involved in school discipline cases to protect the rights of disabled students and collaborate with delinquency attorneys to reduce juvenile adjudications for disabled students. Far too many youth come to the attention of the delinquency court with unmet educational advocacy needs. Further, referral systems for education attorneys are broken. In instances where a school disciplinary event leads to juvenile court prosecution, even in agencies such as CJLP, that screen for educational advocacy needs in order to provide holistic representation, students who are prosecuted come to the attention of an education advocate far too late for the educational advocacy to affect the school discipline decision for the event leading to prosecution. Our school and juvenile court systems need to work better together to serve our youth.
Schools, prosecuting agencies, and courts should scrutinize school referrals to delinquency court to avoid unnecessary stigma and overly harsh, counter-productive punishment. Each entity should adopt policies which officially disfavor charging children under any of the circumstances listed above because the resulting court process is an overly harsh response, vulnerable to the perception it is unfair, and will thus not create a healthy respect for authority and the legal system amongst America's youth.
Samantha Buckingham is a Clinical Professor and a Co-Director of the Juvenile Justice Clinic at the Center for Juvenile Law and Policy ("CJLP") at Loyola Law School.