Left behind, and then pushed out: charting a jurisprudential framework to remedy illegal student exclusions.

AuthorRosborough, Davin

"We cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests." (1)

"In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms." (2)

  1. INTRODUCTION

    As the United States embarks on its first year with an African American President, African American and Latino students in many of our major cities still have less than a sixty percent chance of graduating from high school. (3) The "human cost" of these disparities on the nation as a whole and especially on these particular communities is immense, exacting a particular toll on the career and life prospects of those who do not graduate. (4) Along with disproportionately high dropout rates, schools across the country discipline and exclude African American and Latino students at rates far higher than white students, even in non-urban school districts. (5)

    Hidden amongst students who drop-out and are expelled are a third often neglected category of students: those who have been illegally "pushed out" of school. These students were neither properly expelled according to laws and regulations, nor did they voluntarily choose to end their education. Rather, they are students improperly told or encouraged by administrators to leave school for illegitimate reasons, often in violation of the law. (6) Pushouts occur when administrators tell students that they either must or "should" leave school because they are too far behind in credits to graduate, their test scores are too low, or they have missed too much school, when in fact they are legally allowed to stay in school. (7) This "pushout syndrome" (8) is largely driven by administrators pressured by the No Child Left Behind Act and other test-based accountability measures to raise test scores, who exclude low-scoring and "problem" students rather than addressing their educational needs. (9)

    While dropouts are themselves a staggering problem, the pushout problem may be even more complex because students are usually pushed "out the back door" (10) and "under the radar of effective accountability." (11) Thus, this already invidious practice is furthered by its invisibility to the public. (12) Though the educational advocacy group Advocates for Children of New York (AFC) has recently had some success litigating against pushouts, (13) this practice largely goes unnoticed by the public and unchallenged in the courts. The lack of pushout litigation may result largely from difficulty in discovering the problems, and the potential obstacles to proving that students were "pushed out" rather than voluntarily dropping out. (14) This "pushout syndrome" certainly requires policy cures to address accountability measures gone awry, provide additional educational resources for struggling students, and create "more powerful incentives for schools to 'hold onto' students through graduation...." (15) Regardless, litigation is needed to address the immediate effects of these devastating practices on "minority youth who are already graduating at rates that are far lower than their white counterparts," (16) to deter the practice in the future, and hopefully to spur reform. (17)

    This Note addresses the pushout problem in the context of litigation, identifying different causes of action that courts should recognize as cognizable claims in pushout cases, as well as elements of effective remedies. Part ii examines the pushout problem in greater depth, considering the history of the practice and its growth in recent years. Additionally, Part ii looks at the root causes of pushouts, the reasons why the problem persists largely undetected, and the small amount of pushout litigation conducted thus far. (18) Part iii examines several causes of action as used in previous educational rights litigation, and analyzes each one's potential application to pushouts. Part iii focuses most heavily upon both procedural and substantive due process challenges to school discipline, and federal and state equal protection claims, especially those challenging the equality or adequacy of school financing.

    Part IV recommends a legal framework under which courts considering pushout challenges should operate. in particular, it argues for a more expansive application of due process than is currently applied under Goss v. Lopez, (19) recommends recognition of substantive due process claims, and asserts that pushouts also violate the Fourteenth Amendment under the equal protection rationale of Plyler v. Doe. (20) Further, it suggests that due to the challenges inherent in public school litigation, courts should emphasize monitoring through the appointment of special masters, in addition to targeted injunctive remedies and compensatory measures. Part IV also addresses the problems of proving pushout claims and recommends student data reforms which are needed in order to better protect students from pushouts and to make such litigation more viable.

  2. PUSHOUTS: A BRIEF HISTORY AND THE PRESENT PROBLEM

    1. What is a Pushout? Changing Definitions, Similar Results

      Though the meaning of the term "pushout" has changed somewhat from its origin in the late 1960s, (21) the effects of the practice remain the same: primarily students of color are unfairly and often illegally denied their right to an education. (22) The term "pushout" has been imbued with racial overtones since its origin, when in the early 1970s African American students in recently integrated schools were targeted by white administrators for minor offenses and repeatedly suspended or expelled. (23) These pushed-out students may have appeared "in the statistics as drop outs, expulsions or suspensions," but were actually "victims of discriminatory discipline procedures in public schools." (24)

      Students and parents successfully attacked this pushout practice in the Dallas school system in 1972 by filing a federal class action lawsuit challenging Dallas' suspension procedures on the basis of racial discrimination and the denial of equal protection as well as substantive and procedural due process. (25) The court found that "existing racism" was the "chief cause of the disproportionate number of Blacks being suspended," and directed the school district to "review its present program and to put into effect an affirmative program aimed at materially lessening 'white institutional racism' in the [Dallas Independent School District]." (26) While current pushouts may result less from a targeted racist animus and instead from a more passive form of racism, educational neglect, the result of this practice is largely the same: "[s]everal years from now the non-graduates may show up on welfare roles, in unemployment offices, or in jail." (27)

      A 1969 case from New York City better reflects a current understanding of pushouts, though the term was not then used. in that case, students and their parents challenged an expulsion en masse from Franklin K. Lane High School. (28) The plaintiffs claimed the school was improperly trying to relieve overcrowding when it expelled hundreds of students from its rolls by claiming they "were absent 30 days or more during the present school year and ... had maintained an unsatisfactory academic record in the Autumn [sic], 1968 semester." (29) Several named plaintiffs disputed that they met this criteria, and the class as a whole claimed a violation of due process and equal protection by the expulsions. (30) Judge Weinstein found a violation of due process and issued a preliminary injunction, ordering the school to reenroll the expelled students, and provide make-up classes and resources. He also ordered the creation of a special "Masters Committee" (31) to further address the situation. (32)

      The current conception of pushouts shares some similarities with these examples from several decades ago. Notably, the practice still primarily affects students of color and results in their exclusion from school. (33) As in the Dallas case, disciplinary exclusions are still the justification used for some pushouts. (34) Most similarly, pressures on school administrators are still the root cause of their wrongful conduct, though these pressures are now likely caused more by high-stakes testing and the pressure on struggling schools to meet state and federal standards, than by a primarily racist animus. (35) Thus, as desperate administrators react poorly to these pressures, the same urban students of color long "left behind" educationally face yet another crisis: the reality of pushouts.

    2. A Growing National Problem

      While school administrators push students out using an array of academic and disciplinary explanations, or constructively push students out by limiting educational services and activities to which they are entitled, (36) pushouts have several common components. First, the students affected do not leave school of their own full volition. Rather, they are formally or informally told to leave or are "counseled" that they would be better served in another educational setting such as a General Equivalency Degree (GED) program. (37) Second, regardless of the stated purpose, the administrator's reasons and methods for excluding the students are illegitimate and usually illegal. (38) Finally, the discharged students and their parents are often unaware of their educational rights and thus are left "stranded in an educational no-man's land." (39) These pushouts are often motivated by a common underlying factor as well: "test-based accountability for schools ... provide[s] an incentive to push out low-performing students." (40)

      1. Why Do Pushouts Occur?

        Recent school accountability measures, namely the federal No Child Left Behind Act (NCLB), have put increased pressure on schools to meet...

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