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.
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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.