March 01, 2016

School-to-Prison Pipeline Expands with Innovative Diversion Efforts

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

The school-to-prison pipeline that draws children out of public schools and into the criminal justice system has long been understood to disproportionately affect young people of color. A new study released February 5 at the American Bar Association Midyear Meeting also shows that schools are failing lesbian, gay, bisexual and transgender youth at a similarly disparate rate.

The preliminary report, prepared by the ABA Joint Task Force on Reversing the School-to-Prison Pipeline, says the impact of this problem—on both the individual students and society overall—are even greater than previously believed.

“We have seen a distinct shift over the past few decades in how school administrators and teachers discipline students who violate school rules,” said Jason P. Nance, a professor at the University of Florida College of Law and co-author of the report. “Years ago, they handled most of these incidents internally, but today it’s becoming more common for schools to refer students to law enforcement just for routine matters.”

According to U.S. Department of Education Civil Rights Office data for the 2011-12 school year cited in the study, schools referred about 260,000 students to law enforcement. In addition, about 92,000 students were arrested on school property during the day or at a school-sponsored event.

The number of student suspensions and expulsions also has dramatically increased in recent years. For that same period, about 3.35 million students were suspended at least one time and 130,000 students were expelled. As with referrals to law enforcement and arrests, a majority of these actions “resulted from only trivial infractions of school rules,” according to the report.

Nance told the story of a five-year-old girl who had thrown a temper tantrum during an exercise counting jelly beans and was taken to the school administrator’s office. Although she had settled down, the school called the police. Upon arrival, they handcuffed the girl, arrested her and put her in the back of a cruiser for three hours, even though her mother had arrived shortly after the incident.

Nance then pointed to a situation a few years later involving the arrest of six-year-old girl who also had thrown a tantrum at a school event. The police had to put handcuffs around her biceps because her wrists were too small. She was transported to the county jail, where she was fingerprinted, photographed and charged with a felony and two misdemeanors.

“I don’t think we can underestimate what it means when a student is referred to the criminal justice system,” Nance said. “The long-term detrimental effects on youth include things like reinforcement of violent attitudes, and more limited educational, employment and military opportunities as a result of not finishing high school. This may be the least effective way to rehabilitate youth.”

On top of that, he said, “the costs are astounding. They average $148,000 per year per juvenile. Just compare that with the amount spent educating a child, which is about $12,000 a year.”

Beth Kransberger, a legal educator and education consultant who moderated a panel discussion of the report, said that while researchers have documented the racial disparities in the school-to-prison pipeline for decades, the pipeline’s impact on LGBT youth has only recently begun to draw attention. The report found that these students face similar disproportionate negative treatment and are more likely victimized.

“They are more likely to be confined instead of placed on probation or put into a diversion program,” the study said. “And they are less likely to have access to meaningful education to allow them to graduate from high school and prepare for higher education and work opportunities.”

LGBT youth are up to three times more likely to experience criminal justice and school sanctions than students who do not identify as such, according to research cited by Kransberger. In addition, one-third drop out of school to escape violence and harassment that administrators fail to address. She also wanted to make clear that higher rates of punishment did not correlate with higher rates of misbehavior among LGBT students.

Panelists agreed on the central role of the public school system in the pipeline to prison, a realization that came to attorney Maryann Kotler when she began handling cases involving youth offenders. The 24-year veteran of the San Diego Public Defender’s Office moved to the juvenile division after working with adults for six years.  

“After transferring to the juvenile division during the summer, I noticed that things were very slow,” Kotler said. “So I turned to one of the older attorneys and said, ‘Boy, it’s dead around here.’ And he replied with just two words: ‘School’s out.’

“That’s when I realized my caseload was consumed with charges for incidents that occurred at school,” she said, “from the typical playground fight to other low-level offenses.”

Kotler also said the charges were disproportionately filed against low-income students and students of color. “That was my introduction to the school-to-prison pipeline long before it had a name.”

Kotler is now actively working with police, prosecutors, probation officers and judges to try to reverse the flow. Among them is the San Diego district attorney, Bonnie Dumanis, herself a member of the LGBT community.

Their offices have begun several innovative diversion efforts, including an Alternative to Detention program. A Community Conferencing program brings all parties to an incident together to try to avoid a trial and the usual consequences. They also have launched what Kotler calls a road show —often including a judge—that visits schools to increase the all-around level of understanding.

“We’re certainly not perfect,” said Dumanis, “but we are chasing perfection.”

The task force plans to submit policy recommendations to the ABA House of Delegates’ Annual Meeting next August in San Francisco. Its preliminary proposals include a call for legal representation for students at the point of exclusion from school; development of training modules on implicit bias for all decision makers along the school-to-prison pipeline; elimination of zero-tolerance policies in schools; and support for eliminating criminalization of student behavior that does not endanger others.

Kransberger said it also was time for the legal profession to take a hard look at itself in the area of diversity and inclusion.

“We will be a majority country of color by 2043, which is sooner than the previous forecast of 2050,” she said. “And 2014 was the first year that a majority of children under five were children of color.”

As for the legal profession, Kransberger said, “After leveling off for a few years, we have actually gotten less diverse, with 11 percent lawyers of color.”

Janel George, senior education policy counsel of the NAACP Legal Defense and Education Fund, pointed out the role implicit bias plays all along the school-to-prison pipeline.

She reminded the town hall audience that Trayvon Martin was serving a school suspension at the time he was shot and killed while visiting his father in the gated community of his father’s fiancée.

The African-American teenager’s death sparked a national debate over racial profiling and the role of armed neighborhood watch members. 

This article first appeared in Your ABA News Bulletin: Updates from the 2016 Midyear Meeting, February 10, 2016. © 2016, American Bar Association. All rights reserved.