AuthorAbudu, Nancy G.

    When it comes to challenging school disciplinary policies that have an especially disparate and negative impact on students of color and students with disabilities, courts cannot be the sole or final arbiter for addressing this serious problem. Rather than acting as a discouraging force, courts routinely uphold these disruptive school disciplinary policies and end up being a major conduit in the "School-to-Prison Pipeline" (STPP). The STPP refers to the phenomenon of over-disciplining minors, which in turn results in their suspension, expulsion, and in some cases, incarceration. (1) With limited exceptions, the cases that parents have brought on behalf of their children to challenge these controversial and disruptive school disciplinary polices have been woefully unsuccessful. State and federal laws, at least on paper, create avenues of relief, but the remedies that parents of pipelined children seek remain illusory. Too often courts devalue the pipelined children's experiences by solely viewing them as isolated and unrelated incidents as opposed to being emblematic of an ongoing acceptance of police brutality and violence against certain children.

    Moving away slightly from the legal side of the STPP, it is helpful to examine the school setting where discipline has become problematic. Inevitably, school teachers and administrators often face serious difficulties when addressing the particular learning styles and behavior concerns of children who might exhibit signs related to their intellectual disabilities or emotional problems that are arguably disruptive. School leaders and classroom teachers should and must address disorderly conduct. Yet all disciplinary actions or interventions should encourage students to be accountable for their misbehaviors and poor decision-making. (2) Helping students develop greater insight and better understanding about the connection between the attitudes they display, the behaviors they engage in, and the consequences they face can have a direct impact on their educational achievement and social progress. Therefore, the goal of this Article is to present an integrated approach through policy and legal and pedagogical solutions to dismantling the STPP to advance the educative process and personal development of all youth.



      In 1954, following the U.S. Supreme Court's decision in Brown v. Board of Education, (3) both overt and closeted supporters of race-based school segregation developed new means of making sure this pernicious system remains. (4) Their objective is best evidenced by the zero-tolerance school disciplinary policies that grew rampant in the late 1980s to mid-1990s. (5) Unsurprisingly, black and brown youth are the main victims of school zero tolerance policies that kick kids out of school for even minor offenses and fill up juvenile detention centers, and eventually, prisons. (6) Oftentimes, the unstated goal behind these practices is to prove the fiction that minority children have a predisposition for bad behavior, even though decades of social science research recognizes the role of implicit bias with respect to enforcing school disciplinary policies. (7) Thus, the use of discriminatory disciplinary policies actually perpetuates the marginalization and criminalization of students of color.

      The absurdity behind zero tolerance policies is vividly captured in D.T. v. Harter (8) In that case, the Lee County School Board in southwest Florida reassigned a student to an alternative school based on evidence that the car the student drove to school in contained marijuana. (9) After a thorough investigation, the hearing officer assigned to the case concluded the student lacked knowledge of the marijuana's presence in the car primarily because his mother owned the car, other family members regularly used the car, there were other items in the car that clearly did not belong to the student, and there was no evidence to support that the marijuana belonged to the student. (10) Consequently, the hearing officer recommended that the student not be punished. (11) The School Board accepted the hearing officer's factual conclusions, but nevertheless reassigned the student on the ground that the school's disciplinary policy did not require actual or even implied knowledge on the part of the student. (12) The Board members simply enforced the provision as a zero tolerance policy. (13) Accordingly, possession, even unknowing, was sufficient for purposes of finding a violation. (14) In reversing the School Board's decision, Florida's Second District Court of Appeal ruled that the Board's decision to penalize the student was unreasonable and contravened a plain reading of the policy, which required actual knowledge. (15)

      A common-sense approach to the situation in Harter should have ended the matter before it ever reached the courts. Instead, it took the student two years to get an appellate decision upholding his basic due process rights and protection against unnecessarily harsh punishment. (16) Because of the time lost, students like D.T. are missing out on valuable instructional time and access to curriculum standards that appear on high-stakes exams. (17) Instead, these students are being taught that they do not matter and do not deserve a quality education and real opportunities for success. Rather, they are being lead towards a life of crime. Without strong advocacy from parents and teachers, these messages become a self-fulfilling prophecy for many students who struggle and fall behind, eventually becoming another statistic. (18) Therefore, all adults who touch children's lives during the educative and legal processes must do their part to end this destructive trend.


      While parents and teachers are key stakeholders in advancing a child's educational opportunities, law enforcement and the imposition of adult-like criminal penalties on children are having an opposite, destructive effect. Most disturbing is the violence meted out against children by the adults charged with ensuring their safety. Any form of aggression inflicted upon minors by anyone for any reason must be stopped. Parents who are physically abusive towards their children face stiff civil and criminal penalties, including jail time and loss of parental rights. (19) Either the child or the parent is usually removed from the home to create a safe space for the child. (20) Unfortunately, the same strict consequences usually do not apply to School Resource Officers (SROs) who are guilty of, but are not held legally liable for, injuring students. The great deference courts give to SROs when deciding these cases is exemplified in Hawker v. Sandy City Corporation. (21)

      Hawker involved a nine-year-old student, accused of stealing an iPad, who was combative with school personnel when they retrieved it. (22) In response, school officials contacted law enforcement and restrained the child by grabbing his torso and holding his legs together. (23) When the child was unresponsive to the officer, the officer "'grabbed' [the child's] arm and 'yanked' him up off the floor," "put him in a twist-lock, pushed him against the wall, and handcuffed him." (24) The child tried to resist and told...

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