DISRUPTING THE TRAJECTORY: REPRESENTING DISABLED AFRICAN AMERICAN BOYS IN A SYSTEM DESIGNED TO SEND THEM TO PRISON.

Author:Hill, Leah Aileen
 
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TABLE OF CONTENTS Introduction 202 I. Signposts Along the School-to-Prison Pipeline Track 207 A. Brief Primer on the School-to-Prison Pipeline 207 B. Categorical Markers, Structural Inequality, and the Pipeline Path 208 1. Poverty 209 2. Race 213 3. Disability 214 4. Gender 215 II. Dormant Promises: The Individuals with Disabilities Education Act 216 III. Three Brothers' Journeys on the School-to-Prison Pipeline 220 A. Jonathan 220 B. James 223 C. Jared 226 D. The Joseph Brothers Were on a Fast Track to Prison 228 IV. Access to Justice: Interdisciplinary Advocacy for Students with Disabilities 230 V. Recalculating Route: Placing the Joseph Brothers on the Right Track 231 A. The Perfect Combination: Holistic Representation and Interdisciplinary Practice 231 B. Using Interdisciplinary Skills to Access Quality Health Care 234 C. Placing the Brothers on the Right Track 235 1. Jonathan 235 2. James 236 3. Jared 237 Conclusion 238 INTRODUCTION

It is well known that when some students enter the public school system, they are effectively placed on a track that leads to prison. Scholars have written extensively about this phenomenon and metaphorically refer to it as the school-to-prison pipeline. (1) The moniker denotes structural factors within and outside of the United States public school system that push certain children out of school and into the criminal justice system. (2) The pipeline "track" begins with laws, policies, and practices that are hyper-focused on enforcing discipline in public schools. (3) These policies then become the vehicle for the implicit biases of school officials charged with enforcing disciplinary codes. (4) As a result, students of low socioeconomic status, students of color, students with disabilities, and male students are disproportionately subjected to discipline and, thus, more likely to be placed on the pipeline track. (5) Once singled out, these students tend to experience harsh disciplinary practices, such as suspension, expulsion, and sometimes even arrest. (6) These students are then more likely to fall behind in their classes or to completely disengage from school. (7) This, in turn, leads to their entry into the criminal justice system. (8)

It is particularly curious that students with disabilities are disproportionately subjected to discipline in public schools given the protections they are afforded under the IDEA. (9) The IDEA authorizes federal funding for states to assist in providing for the educational needs of students with disabilities. (10) In order to receive funding under the IDEA, states must comply with a broad array of substantive and procedural mandates. (11) As implemented, states are required to locate, identify, and evaluate children suspected of having a disability. (12) States must then provide these children with a free appropriate public education ("FAPE"), which includes special education and related services designed to meet their unique needs. (13) The IDEA also provides comprehensive evaluation procedures (14) to ensure that disabilities are correctly identified and that the needs of children found to have disabilities as outlined under the IDEA are met. (15)

School-age students must meet the criteria for one of ten categories of disabilities outlined under the IDEA in order to be protected by its substantive and procedural mandates. (16) Once eligibility is determined, these students are entitled to a panoply of educational services and interventions, along with robust procedural protections that extend to their parents. (17) Students receive services via an Individualized Education Program ("IEP") developed by a multidisciplinary team. (18) For students whose behavior interferes with their learning, consideration of "positive behavioral interventions and supports, and other strategies, to address that behavior" is required when developing the IEP. (19) There are additional procedural protections for disabled students who are removed from the classroom for a violation of school conduct codes. (20) Ideally, these protections, along with many others outlined in the statute, should prevent students with disabilities from entering the school-to-prison pipeline. (21) In reality, students with disabilities, especially black students and those with emotional or behavioral problems, (22) are more likely to be on the pipeline path. (23)

This Essay details the story of three boys' journeys through the school-to-prison pipeline. (24) The boys are brothers and are eight, twelve, and fourteen years old at the time each of their stories unfold. The brothers came to the attention of the Family Advocacy Clinic ("FAC") at Fordham University School of Law when their grandmother, Denise Joseph, sought legal assistance from Lincoln Square Legal Services, Inc., the law firm through which the FAC operates. Ms. Joseph did not seek help for all the brothers at once. She came to the FAC on three separate occasions, each time after she had tried working within the school system. (25)

The brothers' stories are not necessarily unique. They are young black boys who faced multiple obstacles in the public school system--for example, harsh discipline for childhood behavior or suspension from school--and, eventually, they were, in some ways, written off. They attended schools that were underfunded and lacked the resources to provide the services these boys needed most. Their stories are similar to those of countless other children on the school-to-prison pipeline path. (26) This Essay uses the brothers' stories to highlight the human costs of policies and practices that contribute to the pipeline and to animate the discourse on what is at stake for children caught therein. By highlighting the daily experiences of these three brothers, this Essay bears witness to the pain and potential loss that underlie calls for reform. The Essay also sheds light on how access to justice, along with reforms to the IDEA, can shift the course for students.

This Essay proceeds in five parts. Part I describes the school-to-prison pipeline--its origins and the various risk factors for entering the pipeline. Part II explores how the IDEA, despite its incredible promise, fails to protect some disabled students from being disproportionately affected by policies and practices that contribute to the pipeline. Part III describes the brothers' narrative. Part IV explores how access to justice, via interdisciplinary legal services, can disrupt the journey of students on the pipeline path and serve as a mechanism for restoring dignity to students with disabilities. Part V returns to the brothers' narrative to illustrate the promise of access to justice for students previously on track to prison.

  1. SIGNPOSTS ALONG THE SCHOOL-TO-PRISON PIPELINE TRACK

    1. Brief Primer on the School-to-Prison Pipeline

      Construction of the school-to-prison pipeline began in the late eighties and early nineties when draconian laws and policies targeting school behavior were introduced, first at the federal level and later implemented at the state level. (27) Many scholars point to "zero tolerance" policies introduced in 1994 through the Gun Free Schools Act ("GFSA") as the catalyst for the more intense focus on punishing children in schools. (28) The GFSA mandated strict punishments, typically suspension or expulsion, for students who brought guns to school. (29) Although the GFSA was intended to address gun violence, it included provisions that allowed school districts tremendous latitude to determine the kind of infractions that would fall under the zero tolerance umbrella. (30) Thereafter, many schools used that discretion to create disciplinary standards that were harsh and inflexible. (31) These schools mandated strict punishments, often suspension or expulsion for even the most minor infractions, regardless of the individual circumstances. (32) Moreover, the GFSA and zero tolerance policies ushered in an era of increased acceptance of using law enforcement personnel and practices to enforce school disciplinary codes. (33)

      Students subject to discipline under zero tolerance regimes are funneled into the criminal justice system through various access points. (34) The most direct route occurs when school officials report students to law enforcement for incidents that occur in school. (35) Some students who are suspended lose valuable instruction time and are more likely to be unsupervised, putting them at risk of contact with the juvenile justice system. (36) Students who are suspended or expelled are more likely to drop out of school and have less access to employment opportunities, making them more socially and economically vulnerable (37) and more likely to engage in criminal activity. (38)

    2. Categorical Markers, Structural Inequality, and the Pipeline Path

      Not all students are susceptible to entering the school-to-prison pipeline. (39) Indeed, a student's race, class, gender, and disability status determine the likelihood of placement on the pipeline track. (40) If a student is living in poverty, he is more likely to enter the pipeline. (41) If he is African American, disabled, or male, he is more likely to be affected by the policies and practices that contribute to the school-to-prison pipeline. (42) Individually, each of these markers increases the chances that a student will be suspended or expelled from school and funneled into the criminal justice system. (43) It follows, then, that students who carry more than one marker are at a far greater risk of entering the school-to-prison pipeline. (44)

      1. Poverty

        Poverty is associated with a range of conditions that affect children and increase their chances of entering the school-to-prison pipeline. (45) For instance, students born into poverty do not have access to resources that can support their academic success. (46) They often lack access to quality healthcare, which is a necessary resource for healthy development. (47) As a result, they are more likely to...

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