A Legal-conceptual Framework for the School-to-prison Pipeline: Fewer Opportunities for Rehabilitation for Public School Students

• Publication year: 2021

94 Nebraska L. Rev. 764. A Legal-Conceptual Framework for the School-to-Prison Pipeline: Fewer Opportunities for Rehabilitation for Public School Students

A Legal-Conceptual Framework for the School-to-Prison Pipeline: Fewer Opportunities for Rehabilitation for Public School Students(fn*)

Brian J. Fahey

TABLE OF CONTENTS

I. Introduction .......................................... 765

II. Three Models for Regulating Juvenile Conduct ......... 768
A. The Criminal Punishment Model .................. 768
1. Rights Attendant to the Criminal Punishment Model ......................................... 768
2. A Framework for Recognizing Criminal Punishment ................................... 769
B. The Juvenile Justice Model ........................ 771
1. Rehabilitative Beginnings ...................... 771
2. Recognizing Due Process Rights in Juvenile Justice ........................................ 772
3. A Retributive Renaissance in Juvenile Courts . . 775
C. The School Discipline Model ....................... 777
1. Sparse Constitutional Origins .................. 777
2. Students' Rights and Punishment in Schools . . . 779
a. Goss v. Lopez .............................. 779
b. Ingraham v. Wright ........................ 782
3. What Goss and Ingraham Tell Us About Students' Rights in School ..................... 786

III. The School-to-Prison Pipeline ......................... 787
A. Zero-Tolerance Policies ............................ 788
B. Referral of Students to the Juvenile System for Misconduct in School .............................. 790
C. The Rise of the School Resource Officer ............ 791

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IV. The Negative Consequences of the Pipeline ............ 793
A. Counterproductive Results ......................... 793
B. Disproportionate Effect on Minority and Learning-Disabled Students ................................. 794
C. Discipline Without a Purpose ...................... 795

V. Conclusion ............................................ 797

I. INTRODUCTION

The environment in which American students attend public schools has changed dramatically over the past thirty years. Students today attend school in the shadow of perennial school shooting massacres, interact with law enforcement officers permanently patrolling their halls, and may be exposed to drug and gang activity never contemplated when their parents or grandparents were students.(fn1) One of the most dramatic, and constitutionally significant, changes affecting students today is the reshaped landscape of how students are disciplined(fn2) by various state actors,(fn3) both in and out of school.

When a student(fn4) is accused of committing an offense at school, the matter may be adjudicated in three distinct venues-within the school itself, through a juvenile court proceeding, or in adult criminal court. Depending upon the forum and the type of sanction imposed, one of three very different theoretical models will apply. Each model bestows a particular set of procedural and substantive constitutional rights upon the accused. This Note labels these three models the Criminal Punishment Model,(fn5) the Juvenile Justice Model,(fn6) and the

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School Discipline Model.(fn7) This Note examines what rights and remedies attend each model, how these models interact, and, most importantly, how they have changed over the past fifty years. This Note posits that a confluence of trends has made it more likely that students subject to school discipline will be transferred or passed between models, almost always resulting in the imposition of a more punitive sanction upon the student. Despite the increasing fluidity with which students may be transferred between models, students' rights remain rigidly affixed within each model.

This evolution in the treatment of students has been labeled in a myriad of works and publications as the "school-to-prison pipeline."(fn8) While this research trail is well-trodden, much of its focus has been on the impact of such trends, particularly its disparate application to certain minority groups of students.(fn9) This Note attempts to identify the conceptual framework underlying the school-to-prison pipeline via an analysis of the rights attendant to the above-described models. Depending upon which model applies, certain constitutional protections may be due the accused student. Correspondingly, the state may be limited in the type and nature of sanction it may impose.

While both the Criminal Punishment and Juvenile Justice Models, and their attendant rights, have been extensively discussed by both legal scholars and courts of law,(fn10) the School Discipline Model remains relatively undefined, both in its parameters and the rights due students within it.(fn11) This Note also attempts to more fully articulate

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the School Discipline Model, primarily through the analysis of two landmark Supreme Court cases: Goss v. Lopez(fn12) and Ingraham v. Wright.(fn13) Through these two cases, the School Discipline Model is revealed as one in which students, though entitled to a modicum of constitutional oversight, are at the behest of school officials, who exercise near total discretion in the types of sanctions imposed and whether or not the student is ultimately referred to law enforcement or the juvenile justice system.(fn14)

Seen through the framework of these three models, the school-to-prison pipeline is best understood as a consort of state policies and practices that ease and encourage the transfer of students between models, generally away from school discipline towards criminal punishment.(fn15) Consequently, this transfer tends to reduce or eliminate rehabilitation opportunities for offending students, in favor of sanctions more punitive in character. This Note finally argues that these effects are undesirable and counterproductive as a means of maintaining the school environment and preparing a student for life as a functional citizen within our democracy.(fn16)

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II. THREE MODELS FOR REGULATING JUVENILE CONDUCT

A. The Criminal Punishment Model

1. Rights Attendant to the Criminal Punishment Model

Throughout American history, courts have struggled to define the concept of criminal punishment.(fn17) Attempting this challenge is not simply an esoteric exercise in judicial philosophy. Rather, understanding the framework by which the state imposes a restraint upon one of its citizens is a critical determination. Only if the actions taken or threatened by the government constitute the imposition of punishment is the offender entitled to certain constitutional protections. Critically, the government may not be constitutionally required to prove the elements of its charges against a defendant beyond a reasonable doubt.(fn18) As its text indicates, the Eighth Amendment's ban on cruel and unusual punishment only applies to actions labeled as such, and not, for instance, to government-imposed treatment for mental illness, regardless of the unpleasantness it incidentally imposes.(fn19) Additional rights only applicable to punishment include the Fifth Amendment's guarantees against self-incrimination and double jeopardy,(fn20) the Sixth Amendment's right to a jury trial, and the right to counsel.(fn21) Additionally, only criminal punishment is subject to the Ex Post Facto Clause, which prohibits punishment for conduct that oc-

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curs prior to the enactment of the conduct's proscription.(fn22) Finally, individuals have a liberty interest in being free from punishment and, thus, are entitled to due process under the Fourteenth Amendment prior to punishment's imposition.(fn23)

2. A Framework for Recognizing Criminal Punishment

Given the extensive constitutional implications of the state's imposition of punishment, a clear analytical framework for determining when state action constitutes punishment is critical.(fn24) Nonetheless, the United States Supreme Court has struggled for well over one hundred years to provide a workable definition of state-imposed punish-

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ment.(fn25) However, certain principals can be gleaned from the Court's oeuvre addressing the concept of punishment.(fn26) A synthesis of relevant case law reveals that the Court will find a sanction to be punitive under the following conditions:

(1) If the sanction is labeled punitive by the legislature, it is conclusively presumed to be so.

(2) If the legislative label or intent indicates that the sanction is "civil," it will be presumed to be so unless it is shown "by the clearest proof" to be punitive under the following conception of punishment:

(a) The sanction involves an unpleasant restraint purposely imposed by the state;

(b) The sanction is imposed upon a person because of an offense;

(c) The sanction is imposed to achieve the purposes of punishment-retribution and deterrence;

(d) The extent and duration of the unpleasant restraint is known, within some possible limits, at the time of its imposition; and

(e) The sanction is generally imposed upon offenders deemed to be blameworthy.(fn27)

As to (2)(c)'s question of intent, the Supreme Court stated in Bell v. Wolfish: "[I]f a restriction or condition is not reasonably related to a legitimate goal-if it is arbitrary or purposeless-a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detain-ees."(fn28) Thus, a legislature's...