Confronting racial disparity: Legislative responses to the school-to-prison pipeline

Harvard Civil Rights-Civil Liberties Law Review

Volumn 44, Issue 2, 2009, Pages 571-580

  Boyd, Tona M ^a  

^a HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

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EID: 70149116311     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (92)

1. See, e.g., All Eyes on Jena: Thousands Prepare for Protests (NPR radio broadcast Sept. 20, 2007), available at http://www.npr.org/templates/story/ story.php?storyId= 14557603. Hereinafter, this article refers to this group of defendants as the "Jena Six."
2. RICHARD G. JONES, PROTEST IN LOUISIANA CASE ECHOES THE CIVIL RIGHTS ERA, N.Y. Times, Sept. 21, 2007, at A15, available at http://www.nytimes.com/2007/09/ 21/us/21jena.html.
3. RICHARD G. JONES, IN LOUISIANA, A TREE, A FIGHT AND A QUESTION OF JUSTICE, N.Y. TIMES, Sept. 19, 2007, at A14, available at http://www.nytimes. com/2007/O9/19/us/19jena.html.
4. 4 See MYCHAL BELL OF 'JENA 6' RELEASED ON BAIL, Sept. 27, 2007, CNN.com, http://edition.cnn.com/2007/US/law/09/27/jena.six/index.html [hereinafter Bell Released] (only jailed member of Jena Six released).
5. JONES, supra note 3.
6. Id.
7. Thousands 'March for Justice' in Jena, Court Orders Hearing on Teen, CNN.com, Sept. 20, 2007, http://www.cnn.com/2007/US/law/09/20/jena.six/index. html.
8. Jena 6 Timeline, Town Talk, Apr. 1, 2008, http://www.thetowntalk.com/ article/99999999/NEWS/80401045.
9. Mandy M. Goodnight, Jena High School Reopens 4 Days After Arson Blaze, Town Talk, Dec. 5, 2006, http://www.thetowntalk.com/apps/pbcs.dll/article7AID=/ 99999999/news/70916010.
10. Jena Six and the Role of Federal Intervention in Hate Crimes and Race-Related Violence in Public Schools: Hearing Before the H. Comm. on the Judiciary, 110th Cong. 2 (2007) (statement of J. Richard Cohen, President, Southern Poverty Law Center), available at http://judiciary.house.gov/hearings/ pdf/1016071.pdf. At an assembly after the protest, LaSalle Parish District Attorney Reed Walters is reported to have said: "With a stroke of my pen, I can make your lives disappear."
11. Id.
12. Jena 6 Timeline, supra note 8.
13. Jones, In Louisiana, a Tree, a Fight and a Question of Justice, supra note 3.
14. 13 Id.
15. Bell Released, supra note 4.
16. See Louisiana Department of Education, 2006-2007 District Composite Report: LaSalle Parish 3-6, Mar. 2008, http://www.louisianaschools.net/lde/pair/ DCR0607/DCR030. pdf (119 (22.1%) of Jena High School students received in-school suspension 2006-2007);
17. see also Louisiana Department of Education, Student Data as of 2006-2007, Oct. 2 2006 http://www.louisianaschools.net/lde/pair/1489.html (follow "Multi-Stats - Oct 2, 2006-By Site- Grades K-12(Only)" hyperlink) (521 total students at Jena High School in 2006-2007).
18. 16 See Student Data as of 2006-2007, supra note 15 (there were 90 black students and 424 white students at Jena High School in 2006-2007)
19. Melinda Edwards, Supervisor of Child Welfare & Attendance, LaSalle Parish School Board, Jena School Discipline Data, Sept. 24, 2007 (on file with author) (37 black students and 77 white students received in-school suspension at Jena High School in 2006-2007).
20. Am. Civil Liberties Union, Locating the School-to-Prison Pipeline, http://www.aclu.org/images/asset-upload-file966-35553.pdf (last visited Mar. 25, 2009).
21. Jones, supra note 3.
22. 19 See, e.g., Robin L. Dahlberg, Am. Civil Liberties Union, Locking Up Our Children (2008), available at http://www.aclu.org/pdfs/racialjustice/ locking-up-our-children-web-ma.pdf;
23. Deborah Fitzgerald Fowler et al., Texas Appleseed, Texas' School-to- Prison Pipeline (2007), available at http://www.texasappleseed.net/pdf/ pipeline%20report. pdf;
24. Elora Mukherjee, N.Y. Civil Liberties Union, Criminalizing the Classroom (2007), available at http://www.nyclu.org/files/criminalizing-the-classroom- report.pdf.
25. See generally Advancement Project & Harvard Univ. Civil Rights Project, Opportunities Suspended: The Devastating Consequences of Zero-Tolerance and School Discipline (2000) [hereinafter Opportunities Suspended], available at http://www. advancementproject.org/reports/opsusp.pdf (discussing the adoption of zero tolerance policies across the country).
26. Phillip Kaufman et al., U.S. Dept of Educ. & U.S. Dept of Justice, Indicators of School Crime and Safety 117 app. A (1999), available at http://nces.ed.gov/pubs99/ 1999057.pdf.
27. See, e.g., OPPORTUNITIES SUSPENDED, supra note 20, at 1
28. RALPH C. MARTIN II, AMERICAN BAR ASS'N, ZERO TOLERANCE POLICY REPORT (2001), available at http://www.abanet.org/ crimjust/juvjus/zerotolre port.html.
29. See OPPORTUNITIES SUSPENDED, supra note 20, at 1;
30. Johanna Wald & Daniel J. Losen, Out of Sight: The Journey Through the School-to-Prison Pipeline, in Invisible Children in the Society and Its Schools 23, 25 (Sue Books ed., 3d ed. 2007).
31. AM. CIVIL LIBERTIES UNION & AM. CIVIL LIBERTIES UNION OF CONN., HARD LESSONS: SCHOOL RESOURCE OFFICER PROGRAMS AND SCHOOL-BASED ARRESTS IN THREE CONNECTICUT TOWNS (2008) [hereinafter HARD LESSONS], available at http://www.aclu.org/pdfs/racialjustice/hardlessons-november2008.pdf
32. see also Martin, supra note 22 (describing zero tolerance policies as "one-size-fits-all mandatory punishment").
33. OPPORTUNITIES SUSPENDED, supra note 20, at 3.
34. RUSSELL SKIBA, ROBERT S. MICHAEL, ABRA CARROL NARDO & RENEE PETERSON, THE COLOR OF DISCIPLINE: SOURCES OF RACIAL AND GENDER DISPROPORTIONALITY IN SCHOOL PUNISHMENT 2-5 (2000), available at http://www.indiana.edu/~safeschl/cod. pdf;
35. Wald & Losen, supra note 23, at 25.
36. Wald & Losen, supra note 23, at 25-26.
37. See SKIBA ET AL., supra note 26, at 2 (citation omitted).
38. Johanna Wald, The Failure of Zero Tolerance: A Nationwide Crackdown on Students has Resulted in Outrageous Punishments that Disproportionately Affect Minorities, Salon, Aug. 29, 2001, http://archive.salon.com/mwt/feature/2001/08/ 29/zero-tolerance/print.html ("Less chronicled is the fact that, in many schools, zero tolerance has become a convenient tool for disposing of more and more children of increasingly young ages-disproportionately poor and minority-who may be irritating, problematic or troublesome, but hardly dangerous.").
39. OPPORTUNITIES SUSPENDED, supra note 20, at 6-7.
40. Kim Brooks, Vincent Schiraldi & Jason Ziedenberg, School House Hype: Two Years Later, 16-27 (2001) http://www.prisonpolicy.org/scans/jpi/shh2.pdf.
41. Gun-Free Schools Act of 1994, Pub. L. No.103-382, 108 Stat. 3907, 3907-08 (2000) (codified at 20 U.S.C. § 8921-8923 (2000)), repealed by Pub. L. No. 107-110, 115 Stat. 1986 (2002)
42. see also Gun-Free Schools Act, Pub. L. No.107-110, 115 Stat. 1762, 1762-1763 (2002) (codified at 20 U.S.C. § 7151 (2006)) (repealing the Gun Free Schools Act of 1994, but simultaneously enacting another, similar Gun Free Schools Act as a subpart of the No Child Left Behind Act of 2001).
43. 31 See, e.g., Gun-Free Schools Act of 1994, 20 U.S.C. § 8921(b)(1) (1994) (repealed 2002) (mandating that states receiving federal funds for education require expulsion "from school for a period of not less than 1 year a student who is determined to have brought a firearm to a school, or to have possessed a firearm at a school," but allowing case-by-case exceptions if the exceptions are made in writing)
44. see also Gun-Free Schools Act, 20 U.S.C. § 7151(b)(1) (2006) (mandating same penalty, but allowing case-by-case exceptions, without requiring that exceptions be made in writing).
45. See OPPORTUNITIES SUSPENDED, supra note 20, at 1.
46. Martin, supra note 22.
47. See Douglas Stanglin, House Panel Examines Jena 6 Case, USA Today, Oct. 17, 2007, http://www.usatoday.com/news/nation/2007-10-16-jena-six-N.htm.
48. See National Briefing: Pardons Sought in Jena Six Case, N.Y. Times, Dec. 22, 2007, at A23.
49. Gang Abatement and Prevention Act of 2007, S. 456, 110th Cong. (2007) [hereinafter GAPA], available at http://www.thomas.gov/cgi-bin/bdquery/z?dllO: SN00456:L& summ2=m&#status.
50. The new legislation drops the purposive requirement that is present in existing federal anti-gang law. Compare id. § 521 (defining "criminal street gang" as "a formal or informal group or association of 5 or more individuals, who commit 3 or more gang crimes... in 3 or more separate criminal episodes," and listing a series of offenses that constitute "gang crime"), with 18 U.S.C. § 521(a) ("criminal street gang" has "as 1 of its primary purposes the commission of 1 or more" of a list of crimes).
51. GAPA, supra note 36, at § 201-215.
52. Id. § 301-314.
53. See Andrew Goldsmith, Recent Development, Criminal Gang Abatement Act, 39 HARV. J. ON LEGIS. 503, 503 (2002).
54. See id.
55. See 153 Cong. Rec. SI 1, 965 (2007)
56. see also S. 456. The companion bill, H.R. 3547, was introduced in the House by Representative Adam Schiff, but that bill is less developed in the legislative process than the Senate version.
57. See H.R. 3547, 110th Cong. (2007), available at http://thomas.loc.gOv/ cgi-bin/bdquery/z7dll0:HR03547:X. Therefore, this analysis will focus on Senator Feinstein's bill.
58. Linh Vuong & Fabiana Silva, Nat'l Council on Crime and Delinquency, Evaluating Federal Gang Bills 3 (2008), available at http://www.nccd-crc.org/ nccd/pubs/2008-eval-fed-gang-bills.pdf.
59. Criminal street gang is defined as "a formal or informal group, organization, or association of 5 or more individuals-(A) each of whom has committed at least 1 gang crime; and (B) who collectively commit 3 or more gang crimes (not less than 1 of which is a serious violent felony), in separate criminal episodes." S. 456, § 521. The Act's definition of "gang crimes" includes, among others, crimes that involve the threatened use of physical force; obstruction of justice; tampering with a witness; drug manufacture, distribution, or possession; crimes related to explosive materials; crimes relating to firearm possession; fraud or identity theft; and harboring aliens.
60. Id.
61. Vuong & Silva, supra note 43, at 3.
62. Id.
63. Id. at 4-5.
64. Id. at 6-7.
65. See id.
66. see also JUDITH GREENE & KEVIN PRANIS, JUSTICE POLICY INST., GANG WARS: THE FAILURE OF ENFORCEMENT TACTICS AND THE NEED FOR EFFECTIVE PUBLIC SAFETY STRATEGIES 72 (2007), available at http://www.justicepolicy.org/images/ upload/07-07-REP-Gang Wars-GC-PS-AC-JJ. pdf.
67. For a critique of an anti-gang punishment system in California comparable to S. 456, see Raj Jayadev, Two Words that Can Get You Life in Prison, Colorlines, Nov.-Dec. 2008, at 23, 23, available at http://www.colorlines.com/ articIe.php?ID=446&p= 1.
68. GREENE & PRANIS, supra note 49, at 67.
69. VUONG & SILVA, supra note 43, at 6.
70. See id. at 1, 9 (stating that eight members of the House of Representatives withdrew their support for Rep. Schiffs companion bill to Senator Feinstein's proposal "due to concerns of disproportionate effects the legislation will have on youth of color")
71. see also Press Release, Justice Policy Institute, 38 National and State-Based Organizations Voice "Grave Concerns" for Senator Feinstein's Gang Bill; Emphasizes Costly, Stop-Gap Approaches Could Worsen Problem, Unfairly Targets Undocumented Youth (June 6,2007),available at http://www.justicepolicy.org/content-hmID=1817&smID=1571&ssmID=42.htm (asserting that "the overbroad and too-inclusive definition of gangs in the bill will dramatically increase unwarranted federal prosecution of youth of color, and could ensnarl a wide spectrum of youth").
72. VUONG & SILVA, supra note 43, at 9 (citing Carl E. Pope, Rick Lovell & Heidi M. Hsia, U.S. DepV of Justice, Disproportionate Minority Confinement: A Review of the Research Literature from 1989 Through 2001, 5 (2002), available at http://www.ojjdp.ncjrs.org/dmc/pdf/dmc89-01.pdf).
73. POPE ET AL., supra note 53, at I (making recommendations for reducing disproportionate minority confinement)
74. see also VUONG AND SILVA, supra note 43, at 10 (stating that "partly in response to the concerns of the racial disparity created by the difference in sentencing between crack and powder cocaine, the US Sentencing Commission lowered its sentencing guidelines for crack cocaine offenses.").
75. See VUONG & SILVA, supra note 43, at 10 (noting that the Sentencing Commission also reported that approximately 70% of defendants convicted under the existing gang codes were African Americans and Latinos).
76. See GREENE & PRANIS, supra note 49, at 36-37.
77. Id. at 40-43.
78. See, e.g., JUSTICE POLICY INSTITUTE, supra note 52.
79. YOUTH PROMISE ACT, H.R. 3846, 110th Cong. § 4 (2007).
80. Id.
81. VUONG & SILVA, supra note 43, at 5.
82. H.R. 3846, § 202.
83. Id. § 201.
84. See, e.g., Coalition for Juvenile Justice, Youth Promise Act Support Letter, http://www. juvjustice.org/announcement-116.html (last visited Feb. 27, 2009);
85. Letter from Sarah Bryer, Director, National Juvenile Justice Network, to Members of Congress (Dec. 20, 2007), available at http://www.house.gov/scott/ pdf/NJJN-supportletter.pdf;
86. Letter from Caroline Frederick- son, Director, American Civil Liberties Union, to Members of Congress (Dec. 17, 2007), available at http://www.aclu.org/ images/asset-upload-filel7-33287.pdf
87. see also VUONG AND SILVA, supra note 43, at 4-5 (describing GAPA as primarily suppressive and YPA as preventative).
88. H.R. 3846, § 403.
89. VUONG & SILVA, supra note 43, at 11.
90. See, e.g., OPPORTUNITIES SUSPENDED, supra note 20, at 6-7.
91. See, e.g., HARD LESSONS, supra note 24, at 35-37.
92. Am. Civil Liberties Union, Locating the School-to-Prison Pipeline, supra note 17.