Expelling a child from school and sentencing a child to life in prison without possibility of parole are two very different actions. They have different motivations and are vastly different deprivations of a child's rights. They are, however, both serious actions that carry with them consequential and long-lasting effects on a child's potential for "the full and harmonious development of his or her personality," as well as a child's rights to development, education, and an adequate standard of living as set out in the Convention on the Rights of the Child. Preamble, Art. 6, 27–29, Nov. 20, 1989. Both actions also signify a profound statement about the United States' view of its obligation to ensure that children "should be fully prepared to live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular the spirit of peace, dignity, tolerance, freedom, equality and solidarity." Id., Preamble.
The U.S. Supreme Court's decision last year in Graham v. Florida, which prohibited life sentences without possibility of parole for juveniles in non-homicide cases, confirmed that, at least for life sentences, children's rights and our collective obligations to children must not be lost or overrun as part of a quest to punish wrongdoing. The Graham decision is notable from a children's rights perspective because, like its predecessor, Roper v. Simmons, 543 U.S. 551 (2005), its focus on juvenile brain development as a justification for precluding life sentences shifts jurisprudential focus away from the horrendousness of the crime committed and toward the development and future potential of the child involved. See Graham v. Florida, 130 S.Ct. 2011, 2026–27 (2010). As the Court explained in Graham, the determination of whether a punishment is cruel and unusual by Eighth Amendment standards "requires consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question." Id. at 2026 (citing Roper, 543 U.S. at 568). The Court went on to explain that children are different from adults and should be treated differently because "parts of the brain involved in behavior control continue to mature through late adolescence." Id. Thus, "[j]uveniles are more capable of change than are adults, and their actions are less likely to be evidence of 'irretrievably depraved characteristics.'" Id. (quoting Roper, 543 U.S. at 570).
The Graham holding and the social science-based data that motivated it create an interesting context from which to analyze the school discipline crisis that grips the United States. If life sentences without the possibility of parole for juveniles in non-homicide cases are clearly unconstitutional, and if what we now know and understand about the way children's brains develop justifies holding children not accountable in the same way as adults, then how can our legal and educational systems continue to justify the relative ease with which school administrators expel children from school? The stakes and the legal analyses are different, but the consequences to children and to the nation as a whole are perhaps no less serious.
Since the 1970s, school suspension and expulsion rates in the United States have more than doubled to more than three million suspensions and over 97,000 expulsions in the year 2000. NAACP Legal Defense and Educational Fund, Dismantling the School to Prison Pipeline (October 2005). "Zero-tolerance" discipline policies have fueled the increase in recent years, as has the increasing reliance of school administrators and educators on law enforcement tactics to discipline children. See Advancement Project, Education on Lockdown: The Schoolhouse to Jailhouse Track (March 2005); American Civil Liberties Union, Dignity Denied: The Effect of "Zero Tolerance" Policies on Students' Human Rights (Nov. 2008).
Recently, the news media has exposed the often outrageous consequences of zero tolerance and the heightened role of law enforcement in school that flows from these policies. This exposure highlights the policies' absurd results. Examples include a six-year-old Cub Scout in Delaware who was suspended from school for bringing a camping utensil with a knife, fork, and spoon on it to school and a 12-year-old girl in Brooklyn, New York, who was arrested and hauled out of school in handcuffs for doodling on her desk. Though these stories bring fleeting attention to a misguided policy trend, they are but minor illustrations of a growing, monumental problem in our education system. Every day in the United States, hundreds and possibly even thousands of children are removed from school—for anywhere from a couple of days to a year or more—for offenses ranging from shouting in the hallway, talking back to a teacher, being "insubordinate," getting into a fight with another student, or, in more serious situations, bringing alcohol, drugs, or weapons to campus.
The consequences of relying on removing children from school as a primary tactic to address misbehavior are nothing short of devastating. Prior suspension is more likely to cause a child to drop out of high school than any other factor, including low socioeconomic status, not living with both biological parents, a high number of school changes, and having sex before age 15. Suhyun Suh, Jingyo Suh, & Irene Houston, "Predictors of Categorical At-Risk High School Dropouts," 85 Journal of Counseling and Development 196, 196–203 (Spring 2007). Students who are expelled from school—that is, removed from school for more than 10 days—are even less likely to graduate from high school.
The consequences of not graduating from high school, of course, are severe. Children who do not finish high school are 3.5 times more likely to be arrested as adults. Additionally, approximately 82 percent of the adult prison population is composed of high-school dropouts. Coalition for Juvenile Justice, Abandoned in the Back Row: New Lessons in Education and Delinquency Prevention (2001). Children who do not finish high school are much more likely than high-school graduates to be and remain unemployed and to earn less money if they do gain employment. Id. Additionally, school dropouts are much more likely to receive public assistance. See National Center for Education Statistics, Dropout Rates in the United States: 2000.
These trends are bad for the children and families who are directly affected by them, helping to further entrench intergenerational poverty and marginalization and effectively cutting off children's hopes for successful futures as productive adults. They are also destructive for communities as a whole because large numbers of uneducated young people who are more likely to commit crime put all of us at a greater risk of becoming victims of crime, in addition to the fact that young people who are and remain unemployed do not build strong, self-sustainable communities as adults. Bob Herbert of the New York Times has reported that the number of "disconnected youth"—young people between the ages of 16 and 24 who are neither in school nor working—is at least four million nationwide and growing. Bob Herbert, "Out of Sight," N.Y. Times, June 10, 2008. (Note that this article and the four million disconnected youth statistic were published in 2008, before the worst of the recent recession had hit families.)
Our broad, nationwide overreliance on exclusionary discipline policies is a national disaster. It is also only the tip of the iceberg. Exclusionary school discipline is only one of many factors that lead to children being "pushed out" of school. See Dignity in Schools Campaign, National Resolution for Ending School Pushout, December 2009. Unwelcoming school environments in many cities and communities treat students more like prisoners than children and, when combined with a lack of relevant or engaging curricula, inadequate resources and facilities, and failure to use effective prevention and intervention strategies for misbehavior, create a situation in which many children are almost destined to fail. Education, however, is not a fundamental right as set out in the Fourteenth Amendment. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 11–12 (1973). Thus, while students are due some level of due process before their right to an education can be taken away (see Goss v. Lopez, 419 U.S. 565 (1975)), it is essentially quite easy for school administrators to expel them from school, dooming many of them to a life of unemployment, crime, and little else.
Each state has a different statute addressing the procedure school administrators must follow to expel a child from school. All have a starting point in Goss v. Lopez, which holds that removing a child from school for more than 10 days requires something more than the minimal notice and explanation that is required when suspending a child from school for less than 10 days. 419 U.S. at 581–84. The process that is required for those longer exclusions of more than 10 days varies from state to state, but generally involves a hearing in front of the board of education at which the student has a right to an attorney (but not at public expense) and may present his or her case, but has limited access to evidence against him or her (few states have rules against admission of hearsay, for example, and schools often rely on evidence parents and students cannot access, like video surveillance footage) and little recourse to the rules of evidence to help make his or her case. The practical result is that boards of education rarely overturn a principal's decision to expel a child from school, and, unless they have the resources or good fortune to attain an attorney, most children who have been proposed for expulsion from school are ultimately expelled.
So, given the extreme and likely consequences to children and communities that result from schools' heavy reliance on school suspension and expulsion, why is it so easy to remove children from school? The considerations the Supreme Court enumerated in Graham—that children's brains do not fully develop the ability to control behavior until later adolescence and that they therefore cannot be held accountable for their actions in the same manner as adults who commit similar acts—seem to apply equally well to the school expulsion scenario. Children who misbehave in school are largely not criminals. They are children. They misbehave. That misbehavior, especially when it endangers others, must be addressed. But it should be addressed appropriately, with a focus on preserving every child's dignity and right to an education, because although children who get into a fight at school have done something much less onerous than children who commit the horrific crimes that motivated the Graham case, the reality is that the consequences for these two groups of children are both devastating.
Children who do not finish school are essentially doomed to a life sentence of crime and unemployment. Children in prison are denied any opportunity to participate in life outside prison walls. School dropouts are ostensibly free to roam the streets, but are cut off from access to the ladder to success in U.S. society and are more likely to end up in prison and in unemployment lines. Their futures are functionally as bleak as their incarcerated counterparts.
The costs to communities and the country as a whole are equally great. Draconian school discipline policies are condemning an entire generation of young people. Losing the right and/or ability to complete their educations is a serious deprivation of children's rights. It is not equivalent to depriving a child of his or her right to liberty and right to be free from cruel and unusual punishment, but surely it is serious enough to merit more than a sham due-process procedure that ultimately puts children's futures in the hands of overzealous school administrators who have almost unfettered discretion to decide whether a child should be expelled from school. The right to education is a human right that should not be taken away from students unless states "take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity." Convention on the Rights of the Child, Art. 28 (Nov. 20, 1989). This is not the reality for thousands of children in the United States. This reality alone should serve as a basis for developing school discipline policies that respect children's dignity and preserve their right to an education, reserving suspension and expulsion only for the most serious, dangerous situations.
There are some concrete things that lawyers who care about children's rights can do to help. First, lawyers need to advocate, as the ABA has already suggested, for the abolishment of state, local, and school district-level zero-tolerance policies. See American Bar Association, Resolution Concerning School Discipline (2001). Second, lawyers can help ensure that low-income children and families facing school expulsion have legal representation by taking such cases for little or no cost and/or by supporting legal aid programs and other nonprofits that provide such representation for free. Anecdotal evidence nationally shows that legal representation in school expulsion cases greatly increases the likelihood that an individual child will avoid expulsion. Finally, and most importantly, lawyers can help support local movements to shift school district policies away from a focus on suspension and expulsion as the primary means of school discipline.
There are some great examples from all over the country of lawyers working in cooperation with community-based organizations and local parent and student-led groups to advocate for needed change. The Advancement Project, for example, is a Washington, D.C.-based civil rights organization that worked with Padres & Jóvenes Unidos, a Denver, Colorado-based parent and youth organizing group, to implement changes to the Denver Public Schools student code of conduct, reducing suspensions, expulsions, and school-based arrests. See Padres & Jóvenes Unidos, Ending the School to Jail Track. It is often difficult for attorneys to take a back seat, but school policies are and should be a community concern, and community-based and community-directed actions have proven to be the most effective means of achieving meaningful policy change. Children's rights lawyers, especially, can provide needed leadership, guidance, and support because they understand the stakes. The parallels between children who have been sentenced to draconian prison sentences and children who lose the right to complete their educations are stark, and the consequences of failing our children are terrifying. We can and must do better.
Keywords: litigation, children's rights, expulsion, suspension, zero tolerance, pushout