January 17, 2013 Articles

Federal Spotlight on the School-to-Prison Pipeline

By Allison R. Brown

In 1999, Columbine happened.  And in the years following, schools and some states ramped up zero tolerance in school discipline to alleviate fears of another tragedy. The school-to-prison pipeline grew.

Here we are again. Recently, Newtown happened.  Another horrific tragedy.  I am hopeful, however, that we will not see the reactionary overreach in school policies that we saw after Columbine. My hope is due in large part to the Senate hearing about ending the school-to-prison pipeline that took place on Wednesday, December 12, 2013—only two days before the violence that struck Sandy Hook Elementary School.

The school-to-prison pipeline is a cacophonous mash-up of numerous factors, including zero- tolerance student-discipline policies, that contribute to (1) in the short term, the exclusion of children, disproportionately children of color, from the regular classroom environment as a means of punishment; and (2) in the long term, the entanglement of children, disproportionately children of color, in the criminal-justice system.

Federal attention to the school-to-prison pipeline is not new.  The Supreme Court, in Alexander v. Sandoval, 532 U.S. 275 (2001), closed the courthouse doors to private litigants' claims of disparate impact under Title VI of the Civil Rights Act of 1964. As such, the ability to seek redress under Title VI for practices that have a disparate impact on a protected class of people, including students of color caught in the school-to-prison pipeline, now rests solely with federal agencies whose promulgating regulations give them authority to enforce Title VI. Title VI is available to private individuals as a tool to address racial discrimination only for claims of intentional differential treatment.

Advocates have filed disparate-impact claims with the Department of Education and the Department of Justice alleging racial discrimination in schools' student discipline practices.  Many of those claims await resolution. Part of the delay is the agencies' reluctance to call the Supreme Court's bluff. In Sandoval, the Court, through Justice Scalia, indicated that it would eagerly close the courthouse doors to disparate-impact claims from federal agencies if the issue were squarely before it. The Senate, in convening a hearing about ending the school-to-prison pipeline, may have signaled its willingness to provide the executive branch with the legislative cover it needs to vigorously investigate and pursue disparate impact claims.  

As a former trial attorney for the Department of Justice, Civil Rights Division, Educational Opportunities Section, I remember very well the joint announcement by Attorney General Eric Holder and Secretary of Education Arne Duncan in July 2011 about the creation of an inter-agency Supportive School Discipline Initiative to be co-led by the Departments of Justice and Education.  I also know well the joint two-part conference convened in 2010 by both agencies to discuss and address the school-to-prison pipeline.  Subsequent to these two actions, the federal enforcement agencies have focused their efforts on eliminating the school-to-prison pipeline by litigating with renewed vigor existing school-desegregation cases; initiating new investigations under Title IV of the Civil Rights Act; and through extensive outreach and funding efforts.

Melodee Hanes, the acting administrator of the Office of Juvenile Justice and Delinquency Prevention in the Office of Justice Programs for the Department of Justice, and Deborah Delisle, the assistant secretary of the Office of Elementary and Secondary Education at the Department of Education, testified side by side at the Senate hearing and detailed federal enforcement efforts, including the Supportive School Discipline Initiative, to end the school-to-prison pipeline.

The federal enforcement arm could use more teeth, however, and Congress is uniquely poised to provide it.  Members of the American Bar Association are also uniquely poised . . . to lobby their congressional representatives, advocate for children in due-process hearings who are being suspended and expelled from school, send the Departments of Education and Justice student discipline complaints thoroughly supported by data and by anecdotes from children caught in the pipeline, and otherwise counteract the school-to-prison pipeline.

Attorneys who want to do something about the pipeline must recognize that, while much has been made of the role of zero-tolerance school-discipline policies and exclusionary discipline practices such as suspension and expulsion in creating the school-to-prison pipeline, there are other factors that contribute too, including for instance lack of meaningful family engagement and a societal deficiency mindset with respect to people of color and people living in poverty (two distinct categories that ought not be conflated).

The contributing factors are multifaceted. It may be tempting to point the finger exclusively at schools for failing to eliminate the school-to-prison pipeline, but it is a mistake to place sole responsibility on educators' shoulders. We all must do our part. Schools must ensure that their curricula are engaging and include behavioral lessons in addition to academic, their teachers are well-trained and compassionate, their school culture is clearly defined and welcoming for parents and families and students, and their student discipline policies allow for discretion and for student growth.

States must ensure that education budgets allow for systems of support in school buildings so that schools can have an army of counselors, social workers, and other mental health and community-service providers at their disposal and so that school districts can provide meaningful alternative education programs for students who are not successful or comfortable in the traditional learning environment. These alternative settings cannot be warehouses for children of color and low-income students, but must be places for high-level learning, vocational training, and alternative certification. Law-enforcement officers who are tapped or who volunteer to serve as school resource officers must ensure that any memorandum of understanding or other contractual agreement between schools and law-enforcement entities requires adequate training of officers in child development and social-emotional learning, de-escalation techniques, and a student-centered approach that establishes the school resource officer as a an ally and role model for students and a liaison to the local community.

Juvenile court judges must take a stand and ensure that schools do not utilize the criminal-justice system as an extension of school-based student discipline practices. Parents must ensure that they are engaged in their children's academic and social development. They should insist that schools permit them to observe classroom instruction and that schools invite them in to receive positive news about their children's accomplishments, not just negativity about their children's behavior and perceived failures. Expulsion-hearing officers must be trained in social development and alternative discipline strategies in order to be a partner with students and families in correcting misbehavior. Students and families must be incorporated in reform efforts. And so on . . .

Let's be clear, the civil-rights issue of our time is equity, i.e., ensuring that all students have equal access to educational opportunities. Racial disparities in student discipline, zero tolerance, and the school-to-prison pipeline are symptoms of larger social ills, and we must be deliberate in our efforts to address these ills for the good of all of our children.

Keywords: litigation, children's rights, school-to-prison pipeline, Supreme Court, Alexander v. Sandoval, Title IV of the Civil Rights Act, student-discipline policies, zero tolerance, disparate impact, Columbine, Newton

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Allison R. Brown – January 17, 2013