Racial discrimination in public schools is as much a problem today as it was pre-Brown v. Board of Education. The veil of “zero tolerance” policies ostensibly relating to weapons in schools has become a veil under which school districts criminalize young people. School discipline today means that behaviors that otherwise would be dismissed (and continue to be dismissed for non-minority, non-economically disadvantaged students) as typical teenage outbursts are now treated as crimes and used as a guise to expel students from school. This past January, the Department of Justice and the Department of Education released a new set of guidelines for school discipline. For the first time they acknowledged the disparate impact of typical school disciplinary procedures, and announced slightly expanded protections for students.
“Zero tolerance” disciplinary policies in public schools has long been doing more harm than good, and more harms have been falling on minority students; often such disciplinary policies result in illogical or shocking outcomes. For example, Secretary of Education Arne Duncan noted, in a speech on January 8th, in Maryland 91 pre-Kindergarten students were suspended or expelled during the 2011-12 school year. Nationwide, 95% of all out-of-school suspensions were for non-violent behaviors; such egregious actions included “being disruptive,” “acting disrespectful,” “tardiness,” or “profanity.” In California nearly half of the over 700,000 suspensions state-wide were for “willful defiance.” Many school districts count suspensions as un-excused absences from school. If a student has a certain number of unexcused absences he or she will fail. Clearly something is broken in school discipline and it is not the students’ behaviors.
Public schools have been replacing typical school disciplinary procedures (such as detention or suspension) with police procedures. Police officers are stationed in schools and, perhaps most troublingly, schools have been known to contract private security companies to police students. This has resulted in a sharp increase in the amount of students being not only expelled, as noted above, but also charged with crimes. For example “assault with a deadly weapon (pear),” aka a food-fight, can lead to expulsion; under Massachusetts law, and the laws of many other states, a student who has been convicted of a felony may (and sometimes must) be expelled. Assault with a deadly weapon is a felony, thus, ordinary teenage student behavior quickly becomes a felony and grounds for expulsion and derails a student’s life.
In 2009, the ACLU of Massachusetts did a study on Worcester public schools and found that Hispanic and African-American students made up 85% of Worcester public school students who were arrested as a consequence of school disciplinary procedures between 2005 and 2008. Moreover, in Massachusetts specifically, courts are incredibly deferent to the decisions of school administrators. Only in the rare case where school officials clearly and outrageously acted either discriminatorily against a student or so egregiously violated the student’s due process rights will a court reverse an expulsion or suspension decision.
School discipline, unfortunately, falls within a constitutionally-shady category. At most, education can be considered a substantive due process issue. A plaintiff is not entitled to the infamous “tiers of scrutiny” afforded to equal protection plaintiffs. Thus, unless a plaintiff can convince the court that education is a fundamental right, or that the process he or she should be afforded has been somehow denied, the judiciary will defer to the school. In a rare move, the Justice Department is attempting now to empower individuals despite the judiciary’s reluctance. “A routine school disciplinary infraction should land a student in the principal’s office, not in a police precinct,” Attorney General Eric Holder said. The Justice Department has also announced that school districts may be found to be discriminating whether or not its policies are seen as intentionally discriminatory. If a district’s disciplinary policies are facially neutral yet have a disparate impact on a particular group of students, the district may be liable for violating the due process rights of a student.
The statistics are staggering. But perhaps more staggering is the lagging of the judiciary in expanding constitutional protections to students. The Justice Department has taken a small step in the right direction but it remains to be seen how school districts and the judiciary will react in the future.