Shutting Down the School-to-Prison Pipeline

The school-to-prison pipeline (STPP) has been described as a series of practices and policies that funnel children and adolescents from public schools into our juvenile and criminal systems. Despite jurisprudence from the Supreme Court stating that children are not to be treated as little adults, the STPP reflects a disturbing and retributive narrative that has contributed to the criminalization of childhood and adolescence and has disproportionately affected our most vulnerable populations—youth of color, youth with mental health issues, youth with educational disabilities, and youth who identify as LGBTQ+. The process implicates issues of race and class and has been fueled by geographical and educational segregation, policing, and school disciplinary regimes featuring zero tolerance, high-stakes testing, and underfunded No Childhood Left Behind mandates. Inequalities in public schools mirror national issues regarding class and race. This is a multifaceted problem that will require a multifaceted response. The reality of the pipeline was acknowledged in a 2012 Department of Justice Office of Civil Rights lawsuit accusing Meridian, Mississippi, a city that was still engaged in school desegregation litigation, of formerly running a “school-to-prison pipeline.” Named defendants included the city’s juvenile court judges, school department, and state executive agencies. The pipeline is rarely so explicit, but the effects of practices, whether intended or not, are consequential. In exploring this landscape, I share my perspective as a former public defender and retired juvenile judge and suggest ways to move forward.

The presence of police and law enforcement in schools has been at the center of this discussion, but, as will be discussed, school disciplinary policies also have to be re-examined. The national debate about systemic racial and ethnic equity in the aftermath of the deaths of George Floyd, Breonna Taylor, and other victims of color has energized conversations about police reform in all contexts. This includes the deployment of police in public schools. Formerly, the orthodoxy had been to rely on memoranda of understanding informing how educators and police in schools interact, but the events of the recent past have accelerated conversations about whether police should be in schools at all. Within a month of George Floyd’s murder, Minneapolis terminated the use of police in their schools. In the past year, 33 cities across the country have followed suit or suspended the practice of school resource officers (SROs) or other law enforcement representatives in their schools. The growing list includes urban, suburban, and rural communities in all regions, including St. Paul, Minnesota; Oakland, California; Seattle; Milwaukee; and San Francisco; as well as school districts in San Jose; Portland, Maine; Denver; Charlottesville; and Worcester, New Bedford, and Northampton in Massachusetts.

In February 2021, Massachusetts amended its education law to end a mandate requiring police in schools in lieu of allowing discretionary deployment by district superintendents. State legislatures in Connecticut and Oregon are considering bills to phase out school policing. In June 2021, the Coalition for Juvenile Justice, created by the federal Juvenile Justice Act, includes state advisory groups composed of judges, prosecutors, and advocates, adopted a statement by a 33–0 vote recommending that “Law Enforcement personnel or other personnel with the authority to effectuate arrest should be present in school only upon a demonstrated threat to the immediate safety of students, staff or faculty and then only for as long as the threat exists.” This statement amplifies American Bar Association (ABA) Criminal Justice Standard 3.3 on Dual Involved Youth. Adopted in 2017, the standard includes a model memorandum of understanding designed to eliminate police becoming involved in routine disciplinary matters that result in criminalizing adolescence. The Dignity in School Campaign, the American Civil Liberties Union, and the Judge David Bazelon Center for Mental Health have reiterated their recommendations to remove police from schools by calling for “counselors, not cops.” In August 2021, the ABA adopted Resolution 505, urging states to raise the minimum age of juvenile court jurisdiction to 14. Implementing this recommendation would eliminate the ability to arrest children below that age in school. While these developments do not constitute a tsunami, they do reflect that the culture has changed since the 1999 school shooting in Columbine, Colorado, that contributed to the axiomatic belief that we needed police in public schools.

As noted by the 2018 ABA Task Force Report on the School to Prison Pipeline, historically, Black youth are three to five times more likely to be suspended or arrested than are white youth in school. Arrested Futures (ACLU-CfJJ 2012) notes that youth who do not graduate high school are exponentially more likely to be arrested than youth who get their degree. Supporting educational continuity is a public safety imperative as is addressing the realities of dramatic racial and ethnic disparities in school suspensions and arrests. This discussion requires confronting the consequences of policies, intended, or unintended, that have fueled the pipeline. If we are to move beyond change at the margins, we must confront structural systemic realities that play critical roles in our racial, ethnic, and class divides. What is occurring in our public schools is part of a cradle-to-prison pipeline. As Marian Wright-Edelman has observed, the pipeline prison runs through under-resourced schools and neighborhoods. (Foreword to Juvenile Justice Policy Eds. Jacobs & Sherman).

Police were first stationed in schools in significant numbers in the 1950s. In Flint, Michigan, police were placed in district middle and grade schools as part of an effort to improve community relations with law enforcement. During the civil rights movement and post–Brown v. Board of Education and school desegregation era, the presence of law enforcement in schools increased and then accelerated dramatically after the Columbine school shooting in 1999. From the beginning, the largest deployment of school police has occurred in urban school districts of color that have never had a school shooting event. New York City has one of the largest school districts in the country and has over 5,000 school security agents (SSAs); only nine states have larger police forces. The increased presence of police in schools paralleled the increased surveillance of youth of color in segregated America. The increased presence of police in schools has not promoted confidence or trust among young people in many schools. A high school teacher recently submitted the following question from one of her African American students as part of an ABA project:

I live in Los Angeles, CA. Why are there police officers on my school campus? I am not a criminal.

The teacher noted: I have included some of the questions that my high school students had about their civil rights. They feel like they do not have any rights being African American students.

Almost 70 years after Brown v. Board of Education, public schools are as segregated as they were in 1954. A year after Columbine, the NAACP Children’s Defense Fund published data revealing that in 2000, over 3 million students had been suspended or expelled and 97,000 arrested. African Americans were almost twice as likely to be the subjects of these sanctions. The rate of racial and ethnic disparity in school expulsion and arrests persists. A 2014 American Psychological Association report reveals that police view African American males as being significantly older than their actual ages. Recent studies have demonstrated that these disparities are more pronounced for youth of color with special education needs (Losen et al., Disability Inequity (UCLA Civil Rights Project 2021). A Better Path Forward for Criminal Justice: Reconsidering Police in Schools (King & Schindler, Brookings-AEI Working Group 2021) notes that in Washington, D.C., Black girls are nearly six times as likely to be suspended than white girls. The article also notes that a single arrest in school increases the chance of dropping out of school by 25 percent. The research also demonstrates that LGBTQ+ youth are suspended and arrested at much higher rates than their white peers. The landscape of disparate treatment includes large numbers of children involved in child protection and welfare cases with high rates of experiencing trauma and adverse childhood experiences.

The research reflects the mythology of race-neutral applications of zero tolerance, as discussed by James Bell and Raquel Mariscal and others (Bell & Mariscal, Race, Ethnicity and Ancestry in Juvenile Justice). Zero tolerance in the school context had originally been focused on guns and drugs before being extended to include a wide variety of low-level misconduct. Expanding the scope of sanctioning has accelerated suspension and school arrest rates while contributing to the criminalization of normative adolescent behavior, an issue I addressed in 2015 for the ABA Criminal Justice magazine in a rhetorically entitled article, “Are We Criminalizing Adolescence?” Bell has characterized the process as the abolition of adolescence. Most suspensions and school arrests have involved nonviolent conduct that could be readily resolved in classrooms or via the use of status offense jurisdiction. Limiting long-term school exclusion and arrest to conduct that threatens or results in the infliction of serious bodily harm would promote educational continuity. Collateral consequences of arrests in many states permit students to be excluded from schools while cases are pending. Part of the reform agenda should include expanding models of legal representation that would enable public defenders and court-appointed advocates to represent clients holistically. This entails developing civil Gideon models and expanding the scope of appointments to allow for compensation of attorneys who represent their youthful clients in proceedings that affect them, including school exclusion hearings.

Advocates of maintaining police in schools cite examples of well-intentioned police acting as mentors and coaches while those calling for the removal of police cite media reports of police arresting children as young as five and six. However, this is not a question of good cops or bad cops. It is a question of soberly reviewing best practices and whether training of police or removing police and having school staff attend to the needs of children makes more sense. What do the data and research reveal about the consequences of school policing? Federal programs such as Community Oriented Policing (COPs) and state legislatures financially incentivized wide-scale school policing. Today, almost half of American schools have a police presence, and, according to Alex Vitale, police carry guns in 70 percent of high schools (The End of Policing).

Strategies for Youth has reported that, in the past 20 years, over $2 billion has been spent on school police. But as regards the “money ball” question, has the presence of police in schools made children safer? The data and research say “no.” Proponents of school policing argue that juvenile arraignments have declined since police were placed in schools, but federal arrest National Center on Education data reveals that juvenile arraignment rates and reported incidents of violence in schools peaked in 1994, which was five years before Columbine. Vitale believes that there is no evidence that SROs reduce crime, and there have been only a few reported incidents where police played a role in averting a gun-related crime, and most of those involved threats. A 2015 Justice Policy Institute Report indicated that schools with SROs had nearly five times the arrest rates of schools without police after controlling for demographics such as race and income. Effects of School Resource Officers on School Crime and Responses to School Crime, a July 2020 mega-analysis comparing schools utilizing police in schools with those that do not, found that the presence of school police increased the likelihood of school arrests, especially as regards special education students, and recommended that educators seeking to improve school climates pursue alternatives. This recommendation aligns with the Dignity in School campaign, which promotes the use of strength-based alternatives to zero tolerance, such as restorative justice, positive social learning, and counseling.

An American Civil Liberties Union report showed that 1.7 million students are in schools that have police but no social workers or psychologists. While billions are spent on school policing, public schools are losing guidance counselors, emotional and social learning supports, and even teachers. The mantra of “Counselors, Not Cops” has great traction and has been echoed by hundreds of advocacy groups. It is time to revive President Barack Obama and Eric Holder’s 2014 Department of Education School Discipline Guidelines that focused on keeping students in school and allowing the removal of students from classrooms only as a last resort. The guidelines acknowledged the reality of the school-to-prison pipeline and made concrete recommendations to promote a positive school climate, focus on racial and ethnic disparities, and clearly delineate the role of police.

Conclusion

As a juvenile court judge, I spent a great deal of time collaborating on projects with the Juvenile Detention Alternative Initiative (JDAI) and the National Council of Juvenile and Family Court Judges (NCJFCJ) to develop alternatives to traditional court processing that included expanding diversion opportunities and the creation of school and court-based restorative justice programs. I have also engaged in developing memoranda of understanding between juvenile courts, educators, and law enforcement. While I still believe in the necessity of such engagement, I have come to believe that true change requires a candid appraisal of the need for police in schools. In 2012, I was part of the Massachusetts delegation that attended a national conference in New York, Keep Kids in Schools and Out of Court. I believe that the way to achieve this goal is to rethink school policing and school disciplinary regimes, including zero tolerance. Memorandums of understanding (MOUs) such as the model in ABA Criminal Justice Standard 3.3 on Dual Involved Youth is at best a fall-back position. If police are needed for palpable safety threats, they can readily respond in lieu of being stationed in schools.

Recommendations

Remove police from schools. If they are to remain, MOUs limiting their role to only conduct that threatens or results in serious bodily harm are necessary, as is addressing training in child development and implicit bias.

Limit school long-term suspension and exclusion and only to conduct that threatens or results in the infliction of serious bodily harm and arrests to conduct that threatens or results in the infliction of serious bodily harm.

Replace zero-tolerance policies with proportionate and strength-based engagement that promotes positive youth development, such as collaborative problem solving, emotional support, and restorative justice.

Revive the 2014 Department of Education Guidelines on school discipline.

Promote policies that limit the collateral consequences of school exclusion during the pendency of court cases by allowing students to remain in school or providing meaningful educational alternatives.

Encourage states and jurisdictions to allow for court-appointed advocates to be compensated for representing children in proceedings, including school exclusion hearings, that are related to their delinquency appointments.

Raise the minimum age of juvenile court jurisdiction to 14, as recommended by the ABA Criminal Justice Section.

Bryan Stevenson has stated that each of us is more than the worst things we have done. This is especially so for children and adolescents. Adopting policies that support children in their schools and communities will reduce system racial-ethnic disparities, support positive youth development, and improve public safety.

Judge Blitzman would like to acknowledge the assistance of his research assistants Emma Moore and Matt Wall (Northeastern University School of Law).