Deconstructing the pipeline: evaluating school-to-prison pipeline equal protection cases through a structural racism framework.

AuthorSmith, Chauncee D.

"A man working in a munitions factory explains that he is not killing; he's just trying to get out a product. The same goes for the man who crates bombs in that factory. He's just packaging a product. He's not trying to kill anyone. So it goes until we come to the pilot who flies the plane that drops the bomb. Killing anyone? Certainly not, he's just pushing a button.... [Lastly] there is a Vietnamese peasant, dead, but not killed, you might say. The consequence is there, but born of a process so fragmented as not to register in the consciousness of those involved in it." (1)

Introduction I. Defining the School-to-Prison Pipeline A. Racial Inequities in the U.S. Education and Criminal Justice Systems B. Defining the School-to-Prison Pipeline II. Evaluating School-to-Prison Pipeline Equal Protection Cases: Motive-Centered Analysis vs. Structural Racism Analysis A. Motive-Centered Equal Protection Analysis B. Structural Racism Equal Protection Analysis III. Deconstructing the School-to-Prison Pipeline A. The School-to-Prison Pipeline's Structural Dimensions B. The School-to-Prison Pipeline's Criminalizing Dimension C. The School-to-Prison Pipeline's Sorting Dimension 1. The Pipeline's Macro-Sorting Dimension 2. The Pipeline's Micro-Sorting Dimension a. Racially Biased Standardized Testing b. Racially Biased Educational Tracking D. The School-to-Prison Pipeline's Economic Dimension IV. The School-to-Prison Pipeline in Praxis A. Factual Background: Williams v. California B. A Structural Racism Analysis of Williams v. California 1. Pipeline Criminalizing Factors in California 2. Pipeline Sorting Factors in California 3. Pipeline Economic Policies in California 4. The Convergence of Pipeline Factors in California Conclusion INTRODUCTION

The U.S. criminal justice and education systems wreak havoc upon today's minority population. (2) Among adults, minorities disproportionately bear the brunt of "tough-on-crime" (3) policies, such as mandatory sentencing, three strikes laws, and the death penalty. (4) For instance, thirty-two percent of black males and seventeen percent of Latino males are incarcerated during their lifetime, compared to just six percent of white males. (5) Further, despite only being thirteen percent of the national citizenry, blacks constitute forty-two percent of prisoners on death row. (6) Similarly, contemporary schools disproportionately punish minority students. (7) While blacks and Latinos each account for seventeen percent of U.S. K-12 enrollment, they respectively comprise thirty percent and twenty percent of all twelfth-grade suspensions and expulsions. (8) Before twelfth grade, "black students, compared to whites, are two to five times as likely to be suspended at a younger age." (9) In some states, more than thirty percent of the black student population is suspended each year. (10) This focus on punishing adult and youth minorities has blurred the pedagogical distinctions between America's education and criminal justice systems. Indeed, as students of color disparately transfer from schools to prisons, one can rightly say that America's education and criminal justice systems now bear a symbiotic relationship. (11)

This school-prison harmoniousness is illustrated by the life trajectory of students of color who are suspended or expelled. After being pushed out of school, students of color face daunting odds of being criminalized at virtually every juncture of the criminal justice system. In New York City, for example, eighty-five percent of all stop-and-frisk encounters are administered on blacks and Latinos. (12) National figures show that after being stopped, black youth account for thirty percent of all juvenile arrests, despite only being seventeen percent of the juvenile population. (13) After arrest, black youth make up sixty-two percent of all juveniles prosecuted as adult defendants. (14) Once prosecuted, black youth are nine times more likely than white youth to receive an adult prison sentence. (15) Cumulatively, "black juveniles are about four times as likely as their white peers to be incarcerated." (16)

Many students, educators, lawyers, and civil rights advocates refer to the aforementioned progression as the "school-to-prison pipeline" (the "pipeline"). (17) The phrase "school-to-prison pipeline" conceptually categorizes an ambiguous, yet seemingly systematic, process through which a wide range of education and criminal justice policies and practices collectively result in students of color being disparately pushed out of school and into prison. (18) Zero-tolerance policies illustrate how the intersection of education and criminal justice policies leads to disparate minority student pushout and potential incarceration. (19) The Gun Free Schools Act of 1994 ("GFSA"), (20) for example, was originally adopted for the purpose of promoting "school safety by declaring zero tolerance for weapons in public schools." (21) Yet since the GFSA's implementation, schools have expanded the use of zero-tolerance policies to areas neither contemplated nor addressed by the initial enactment. (22) Traditional adolescent behavior, such as talking out of turn or doodling on a desk, may now be treated as a punishable offense--like disorderly conduct or vandalism--that provides grounds for both school and criminal sanction. (23) For instance, at a New York City public school, zero tolerance for age-appropriate behavior led to a five year old Latino kindergartener being handcuffed and removed from school for having a temper tantrum in class, despite the fact that he suffered from attention deficit disorder. (24)

To be sure, zero-tolerance policies are not the only, or predominant, pipeline factor. Rather, the disparate transfer of minority students from schools to prisons commonly occurs through a much more dynamic process, such as through the intersection of zero-tolerance policies and educational "tracking." Used by "the vast majority of American public schools," (25) tracking is the practice of separating students into homogenous ability groups such as "gifted" and, by implication, "not gifted," in order to provide particularized academic instruction. (26) Ostensibly, separating students into homogenous ability groups "allows for individualized instruction, the development of more positive self-concepts, and more effective and efficient instruction." (27) Many education experts acknowledge, however, "that rigid differentiating instruction--[which occurs] by tracking students as low, middle, and high--is particularly harmful to minority students who are disproportionately placed in lower tracks." (28) Disparately placing minority students in lower tracks is harmful not only because it results in inequitable curricula, but also because low tracked students are subjected to instructional methods (29) that stimulate disruptive behavior. (30) Taken together, zero-tolerance policies and tracking reveal the pipeline's inter-institutional character: tracking fuels minority student disruptive behavior, which--depending on the particular transgression--may result in suspension, expulsion, or incarceration because of zero-tolerance policies. Evaluated in isolation, however, neither tracking nor zero-tolerance policies fully show how education and criminal justice policies and practices intersect in a manner which leads to students of color being disparately pushed out of school and into prison. (31)

Since the emergence of anti-pipeline legal scholarship in the 1990s, most articles have examined pipeline factors, such as zero-tolerance policies, in isolation rather than collectively. (32) Yet in doing so, past works also indicate that the pipeline is an "inter-institutional" system. (33) Critical race scholars have argued that taking a restricted approach to structural issues legitimizes faulty notions of racism by working within equal protection paradigms that fail to account for systemic inequality. (34) Washington v. Davis (350 illustrates this problem because it requires equal protection claimants to prove that facially race-neutral measures have a discriminatory purpose, or are administered for the purpose of discriminating on the basis of race. (36) Critical race scholars argue that Washington's motive standard downgrades the Constitution's equal protection mandate to an illusory promise because proving the existence of a discriminatory motive in a racist system is an impractical, and thus insurmountable, barrier. (37)

This Note confronts the Washington equal protection paradigm by evaluating the school-to-prison pipeline from a structural racism standpoint. (38) A structural racism approach can aid courts striving for a holistic understanding of pipeline cases by emphasizing "the ways in which individual and institutional behavior interact across domains and over time to produce unintended consequences with clear racialized effects." (39) Thus, in contrast to Washington's motive-centered approach, a structural racism lens exposes the pipeline's racist processes, such as in the zero-tolerance policy and tracking intersectional illustration discussed above. In order to help courts approach pipeline equal protection cases through a structural racism lens, this Note deconstructs the pipeline into a structural racism framework that accounts for the pipeline's racist processes and enables pipeline harms to be mitigated. This Note concludes that examining pipeline equal protection cases through a structural racism framework allows students of color to be more adequately protected than under a motive-centered approach.

Part I of this Note provides background information on the pipeline in order to establish a conceptual base for understanding how the pipeline's racist processes can be analyzed in terms of equal protection law. Part II discusses two contrasting approaches to pipeline equal protection case evaluation: motive-centered analysis and structural racism analysis. Part III delineates...

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