The school-to-prison pipeline: Structuring legal reform

The School-to-Prison Pipeline: Structuring Legal Reform

Volumn , Issue , 2010, Pages 1-229

  Kim, Catherine ^a   Losen, Daniel ^b   Hewitt, Damon ^c  

^a UNIVERSITY OF NORTH CAROLINA   (United States)

^b UNIVERSITY OF CALIFORNIA   (United States)

^c NAACP   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84900592568     PISSN: None     EISSN: None     Source Type: Book    
DOI: None     Document Type: Book

References (177)

1. Committee on School Health, American Academy of Pediatrics, Out-of-School Suspension and Expulsion, No. 5, 112 Pediatrics 1206, 1207 (2003).
2. See also Johanna Wald & Daniel J. Losen, Defining and Redirecting a School-to-Prison Pipeline, 99 New Directions for Youth Dev. 9, 11 (2003).
3. Parents and advocates have expressed suspicion that the rise in disciplinary suspensions is attributable, at least in part, to pressures exerted by high-stakes testing accountability such as that required under the No Child Left Behind Act. Empirical evidence provides some support for this suspicion. See David N. Figlio, Testing, Crime, and Punishment, 90 J. Pub. Econ. 837 (2005) (documenting evidence that schools respond to high-stakes testing by selectively disciplining their students because they have an incentive to keep high-performing students in school and low-performing students out of school during the testing window in order to maximize aggregate test scores).
4. The data from 1973 were obtained from Children's Defense Fund of the Washington Research Project, Suspensions: Are They Helping Children? (1975).
5. Data from 2006 were obtained from the U.S. Department of Education's Office for Civil Rights. A full analysis of these data will be published this year. Daniel J. Losen & Russell J. Skiba, Southern Poverty Law Center, Suspended Education: Urban Middle Schools in Crisis (forthcoming 2010) (on file with the authors)
6. see also U.S. Department of Education, Office for Civil Rights, Times Series CD-ROM, 2000 Elementary and Secondary School Survey: National and State Projections (2006).
7. Howard N. Snyder, Office for Juvenile Justice and Delinquency Prevention, Juvenile Arrests 2003, OJJDP Juvenile Justice Bulletin 9 (Aug. 2005), http://www.ncjrs.gov/pdffiles1/ojjdp/209735.pdf.
8. Russell J. Skiba, Zero Tolerance, Zero Evidence 11-12 (2000), http://www.indiana.edu/~safeschl/ztze.pdf
9. Russell J. Skiba et al., The Color of Discipline: Sources of Racial and Gender Disproportionality in School Punishment (2000), http://www.indiana.edu/~safeschl/cod.pdf
10. The Advancement Project & the Civil Rights Project at Harvard University, Opportunities Suspended: The Devastating Consequences of Zero Tolerance and School Discipline Policies 6-7 (2000), http://www.advancementproject.org/publications/opportunity-to-learn.php
11. see also NAACP Legal Defense and Educational Fund, Inc., Dismantling the School-to-Prison Pipeline 5-6 (2005), http://www/naacpldf.org/content/pdf/pipeline/Dismantling_the_School_to_Prison_Pipeline.pdf.
12. Sue Burrell & Loren Warboys, Office for Juvenile Justice and Delinquency Prevention, Special Education and the Juvenile Justice System, OJJDP Juvenile Justice Bulletin 1 (July 2000), http://www.ncjrs.gov/pdffiles1/ojjdp/179359.pdf.
13. Mary M. Quinn et al., Youth with Disabilities in Juvenile Corrections: A National Survey, 71 Exceptional Children 339, 342 (2005), http://www.neglected-delinquent.org/nd/docs/mquinn0305.pdf.
14. Thomas D. Snyder et al., U.S. Department of Education, Digest of Education Statistics 2007 230-31 (2008), http://nces.ed.gov/pubs2008/2008022.pdf.
15. Daniel J. Losen, The Color of Inadequate School Resources: Challenging Racial Inequities That Contribute to Low Graduation Rates and High Risk for Incarceration, 38 Clearinghouse Rev. J. of Poverty Law & Policy 616, 625 (2005) (citing Russell Skiba et al., Children Left Behind: Series Summary and Recommendations, Educ. Policy Briefs (Ind. Youth Serv. & Ctr. for Evaluation & Educ. Policy) (Summer 2004), http://www.ceep.indiana.edu/projects/PDF/PB_V2N4_Summary.pdf.
16. See also 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, 33 (Sue Brooks ed., 3d ed. 2007)
17. American Bar Association & the National Bar Association, Justice by Gender (2001), http://www.abanet.org/crimjust/juvjus/justicebygenderweb.pdf.
18. See Camilla A. Lehr et al., Univ. of Minn., Institute on Community Integration, Alternative Schools: Policy and Legislation across the United States: Research Report 1, at 5 (2003), http://ici.umn.edu/alternativeschools/publications/Legislative_Report.pdf (finding that by 2003, forty-seven states and the District of Columbia had legislation regarding alternative schools or programs)
19. Oleg Silchenko, Education Commission of the States, State Policies Relating to Alternative Education (2005), http://www.ecs.org/clearinghouse/65/77/6577.pdf (providing state-by-state summaries of legislation related to alternative education).
20. See Camilla A. Lehr et al., Institute of Community Integration, Alternative Schools: Findings from a National Survey of the States, Research Report 2, 15-16 (2004), http://ici.umn.edu/alternativeschools/publications/alt_schools_report2.pdf
21. Brian Kleiner et al., Nat'l Ctr. for Educ. Statistics, Public Alternative Schools and Programs for Students at Risk of Education Failure: 2000-01 27 (2002), http://nces.ed.gov/pubs2002/2002004.pdf.
22. The doctrine of in loco parentis refers to the authority of a parent or guardian to transfer parental duties to another person, such as a school official for the duration of the school day. Although the parameters of such a temporary relationship to the children under the care and control of school authorities are not formally spelled out, this doctrine has often been cited as the basis for children having far fewer rights when under the supervision of school authorities than they would anywhere else. See Betsy Levin, Educating Youth for Citizenship: The Conflict between Authority and Individual Rights in the Public School, 95 Yale L.J. 1647 (1986).
23. The National Center for Education Statistics reports that 61 percent of public high schools use random dog sniffs to check for drugs, and almost a third (30 percent) use at least one other type of random sweep for contraband. Thirteen percent of public high schools across the nation drug test athletes, and 8 percent drug test students for nonathletic extracurricular activities. More than one in ten (11 percent) public school students ages twelve to eighteen pass through metal detectors at schools, and more than half (53 percent) are subject to locker checks. Rachel Dinkes et al., National Center for Education Statistics et al., Indicators of School Crime and Safety: 2007 113, 116 (2007), http://nces.ed.gov/pubs2008/2008021.pdf.
24. In 2004, 60 percent of high school teachers reported armed police stationed on school grounds. Paul Hirschfield, The Uneven Spread of School Criminalisation in the United States, 74 Criminal Justice Matters 28 (2008).
25. One juvenile court judge in Massachusetts, for example, reported that he handles more school discipline in his courtroom today than in his former position, as a public school principal. American Civil Liberties Union, Race and Ethnicity in America: Turning a Blind Eye to Injustice 149 (2007), http://www.aclu.org/pdfs/humanrights/cerd_full_report.pdf
26. see also The Advancement Project, Education on Lockdown: The Schoolhouse to Jailhouse Track 15 (Mar. 2005), http://www.advancementproject.org/reports/FINALEOLrep.pdf (documenting growth in the number of school-based arrests in select jurisdictions)
27. Children's Defense Fund, America's Cradle to Prison Pipeline 125 (2007), http://www.childrensdefense.org/child-research-data-publications/data/cradle-prison-pipelinereport-2007-full-highres.html (noting a tripling in the number of school-based arrests in one jurisdiction).)
28. Nat'l Council of Juvenile & Family Court Judges, Juvenile Delinquency Guidelines: Improving Court Practice in Delinquency Cases 151 (2005), http://www.ncjfcj.org/images/stories/dept/ppcd/pdf/JDG/juveniledelinquencyguidelinescompressed.pdf ("It is critical for juvenile delinquency court judges to demonstrate judicial leadership and engage school systems to collaborate with the juvenile delinquency court to . . . [c]ommit to keeping school misbehavior and truancy out of the formal juvenile delinquency court.").
29. In New York City, for example, two-thirds of high-school-age offenders released from state custody do not return to school. Cora Roy-Stevens, Office for Juvenile Justice and Delinquency Prevention, Overcoming Barriers to School Reentry 1 (Oct. 2004), http://www.ncjrs.gov/pdffiles1/ojjdp/fs200403.pdf.
30. In Kentucky, nearly 95 percent of school-age adjudicated youth fail to transition back into mainstream or alternative schools. Ronald D. Stephens & June Lane Arnette, Office for Juvenile Justice and Delinquency Prevention, From the Courthouse to the Schoolhouse: Making Successful Transitions 1 (Feb. 2000), http://www.ncjrs.gov/pdffiles1/ojjdp/178900.pdf.
31. He Len Chung et al., MacArthur Foundation, Juvenile Justice and the Transition to Adulthood (Feb. 2005), http://www.transad.pop.upenn.edu/downloads/chung-juvenile%20just%20-formatted.pdf.
32. Peter E. Leone et al., The National Center on Education, Disability and Juvenile Justice, School Failure, Race, and Disability: Promoting Positive Outcomes, Decreasing Vulnerability for Involvement with the Juvenile Delinquency System 4 (Oct. 15, 2003), http://www.edjj.org/Publications/list/leone_et_al-2003.pdf.
33. Federal Advisory Committee on Juvenile Justice, Annual Recommendations: Report to the President and Congress of the United States 3 (Aug. 2007), http://www.facjj.org/annualreports/ccFACJJ%20Report%20508.pdf.
34. See Charles Hamilton Houston Institute for Race & Justice, No More Children Left behind Bars: A Briefing on Youth Gang Violence and Juvenile Crime Prevention 7-12 (2008), http://chhi.podconsulting.com/assets/documents/publications/NO%20MORE%20CHILDREN%20LEFT%20BEHIND.pdf
35. Alliance for Excellent Education, Saving Futures, Saving Dollars: The Impact of Education on Crime Reduction and Earnings (2006), http://www.all4ed.org/files/SavingFutures.pdf
36. Arthur Blakemore & Dennis Hoffman, The Economics of Dropouts: The Complexities of Uncovering the Real Costs of the Loss of "Human Capital" (Nov. 7, 2003) (unpublished manuscript, on file with the authors).
37. Drum Major Institute, A Look at the Impact Schools (2005), http://www.drummajorinstitute.org/pdfs/impact%20schools.pdf (finding that the New York City Schools labeled as most dangerous are also large, severely overcrowded, and underfunded)
38. National Center for Schools and Communities, Fordham University, Equity or Exclusion: The Dynamics of Resources, Demographics, and Behavior in the New York City Public Schools (2003), http://www.ncscatfordham.org/binarydata/files/EQUITY_OR_EXCLUSION.pdf (noting correlation between student behavior and level of teacher experience and teacher qualifications and other resources at school).
39. See Henry Levin et al., The Costs and Benefits of an Excellent Education for America's Children 13 (2007), http://www.cbcse.org/media/download_gallery/Leeds_Report_Final_Jan2007.pdf.
40. See James Heckman, Report Challenging Federal Pre-K Ideas Gets Sharp Rebuttal, Education Week, Apr. 9, 2008, at 13.
41. For a more thorough review of the parameters of the "right to education," see James Ryan, Standards, Testing, and School Finance Litigation, 86 Tex. L. Rev. 1223 (2008).
42. See Stuart Biegel, School Choice Policy and Title VI: Maximizing Equal Access for K-12 Students in a Substantially Deregulated Educational Environment, 46 Hastings L.J. 1533, 1541 (1995).
43. Recently, the discussion of a constitutionally protected right to an education as connected to citizenship has received renewed attention. See Goodwin Liu, Education, Equality, and National Citizenship, 116 Yale L.J. 330 (2006).
44. See, e.g., Michael Rebell, Educational Adequacy, Democracy and the Courts, in National Research Council, Achieving High Educational Standards for All 221 & n.16 (2002), http://www.schoolfunding.info/resource_center/research/adequacychapter.pdf (citing Peter Enrich, Leaving Equality Behind: New Directions in School Finance Reform, 48 Vand. L. Rev. 101, 120-21 (1995)).
45. For a complete description of subsequent litigation in Texas, see Albert Kauffman, Texas School Finance Litigation: Great Progress and Some Regression, in A Quality Education for Every Child: Stories from the Lawyers on the Front Lines 111 (David Long et al. eds., Washington D.C., 2009).
46. see also letter from Jacquelyn C. Jackson, Director, Student Achievement and School Accountability Programs, to Chief State School Officers (October 12, 2004), http://www.ed.gov/policy/elsec/guid/stateletters/uofcssos.html (further explaining how the accountability requirements do not apply to schools that do not receive Title I funds).
47. See Molly S. McUsic, The Future of Brown v. Board of Education: Economic Integration of the Public Schools, 117 Harv. L. Rev. 1334, 1345-46 & n.72 (2004)
48. James E. Ryan, The Influence of Race in School Finance Reform, 98 Mich. L. Rev. 432, 456 (1999).
49. For a detailed analysis of these cases, see Albert Kauffman, Texas School Finance Litigation: Great Progress, Some Regression
50. Paul Tractenberg, Beyond Adequacy: Looking Backward and Forward through the Lens of New Jersey.
51. The actual number is subject to change, but one organization, Access-located at Teachers College, Columbia University, and directed by Michael A. Rebell-tracks state lawsuits regarding methods of funding public schools. See http://www.schoolfunding.info/states/state_by_state.php3.
52. Michael A. Rebell, Adequacy Litigation: A New Path to Equity? 141 PLI/NY 211 (2004).
53. See, e.g., Alan Jay Rom, "McDuffy Is Dead: Long Live McDuffy!": Fundamental Rights without Remedies in the Supreme Court of Massachusetts, St. John's J. L. Comment. 111, 158-59 (2006)
54. but see Michael Weismand and Rachel Lipton, A Quest for Educational Equity in Massachusetts: The Case of Hancock v. Driscoll.
55. See Jon Mills & Timothy Mclendon, Setting a New Standard for Public Education: Revision 6 Increases the Duty of the State to Make "Adequate Provision" for Florida Schools, 52 Fla. L. Rev. 329, 331 (2000).
56. See Daniel J. Losen, The Color of Inadequate School Resources: Challenging Racial Inequities That Contribute to Low Graduation Rates and High Risk for Incarceration, 38 Clearinghouse Rev. J. of Poverty Law & Policy 616, 629 (2005).
57. Kenji Hakuta, Decent Schs. for Cal., English Language Learner Access to Basic Educational Necessities in California: An Analysis of Inequities (no date), http://www.decentschools.org/expert_reports/hakuta_report.pdf (expert testimony by Professor Kenji Hakuta from Stanford University describes the educational opportunities for English language learners)
58. see also Jeannie Oakes, Decent Schs. for Cal., Education Inadequacy, Inequality, and Failed State Policy: A Synthesis of Expert Reports Prepared for Williams v. State of California 1, http://www.decentschools.org/expert_reports/oakes_report.pdf.
59. M. Karega Rausch & Russell Skiba, Unplanned Outcomes: Suspensions and Expulsions in Indiana, Educ. Policy Briefs 6 (Ind. Youth Serv. & Ctr. for Evaluation & Educ. Policy) (Summer 2004), www.ceep.indiana.edu/projects/PDF/PB_V2N2_UnplannedOutcomes.pdf
60. Daniel J. Losen et al., Exploring the Link between Low Teacher Quality and Disciplinary Exclusion (paper delivered at the School to Prison Pipeline Conf., Harvard Univ. Law School, May 2004) (on file with the authors).
61. See Russell Skiba, Ctr. for Evaluation & Educ. Policy, The Disciplinary Practices Survey: How Do Indiana's Principals Feel about Discipline? (2004), http://www.iub.edu/~safeschl/ChildrenLeftBehind/pdf/2c.pdf.
62. See, e.g., Jonathon Kozol, Savage Inequalities: Children in America's Schools 83-132 (1991) (contrasting the quality of education of schools in Riverdale and South Bronx within the same school district).
63. Office for Civil Rights, 2000 Annual Report to Congress, How OCR Does Its Work, http://www.ed.gov/about/offices/list/ocr/AnnRpt2000/edlite-doeswork.html.
64. see also Jesse Hahnel, Intra-District Funding Inequalities: Rodriguez v. LAUSD (unpublished manuscript, on file with the authors).
65. David N. Figlio, Testing, Crime, and Punishment, 90 J. Pub. Econ. 837, 839 (2005).
66. Joseph B. Tulman, Disability and Delinquency: How Failures to Identify, Accommodate, and Serve Youth with Education-Related Disabilities Leads to Their Disproportionate Representation in the Delinquency System, 3 Whittier J. Child & Fam. Advoc. 3, 76 (2003), http://www.law.udc.edu/resource/resmgr/facultydocs/tulman_disability_delinquenc.pdf.
67. See Mark G. Yudof et al., Educational Policy and the Law 692 (2002).
68. see also David J. D'Agata, Alternative Education Programs: A Return to "Separate but Equal"? 29 Nova L. Rev. 635, 653-55 (2005).
69. See Office of the Public Advocate for the City of New York & Advocates for Children, Pushing Out At-Risk Students: An Analysis of High School Discharge Figures (2002), http://www.advocatesforchildren.org/pubs/pushout-11-20-02.doc
70. see also Elisa Hyman, School Push-Outs: An Urban Case Study, Clearinghouse Rev. J. of Poverty Law & Policy 684, 685 (Jan.-Feb. 2005), http://www.advocatesforchildren.org/pubs/2005/schpushouts.pdf.
71. ACLU et al., Dignity Denied: The Effect of "Zero Tolerance" Policies on Students' Human Rights (2008), http://www.aclu.org/pdfs/humanrights/dignitydenied_november2008.pdf
72. see also Dignity in Schools Campaign, http://www.dignityinschools.org/.
73. All three resolutions of the ABA along with supporting reports are currently available at http://www.cleweb.org/latest/ABA.118B.RighttoRemaininSchool.pdf.
74. See, e.g., Jeannie Oakes et al., Grassroots Organizing, Social Movements, and the Right to High-Quality Education (2006), http://www.law.berkeley.edu/files/oakes-rogersblasi_paper.pdf.
75. 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 26 (Sue Brooks ed., 3d ed. 2007)
76. Daniel J. Losen, The Color of Inadequate School Resources: Challenging Racial Inequities That Contribute to Low Graduation Rates and High Risk for Incarceration, 38 Clearinghouse Rev. J. of Poverty Law & Policy 616, 625 (2005)
77. Russell Skiba et al., Children Left Behind: Series Summary and Recommendations, Educ. Policy Briefs (Ind. Youth Serv. & Ctr. for Evaluation & Educ. Policy) (Summer 2004).
78. Mark A. Greenwald, Florida Department of Juvenile Justice, Delinquency in Florida's Schools: A Four Year Study 5 (2009)
79. Am. Civil Liberties Union, Hard Lessons: School Resource Officer Programs and School-Based Arrests in Three Connecticut Towns (Nov. 2008)
80. Judith A. Browne, Advancement Project, Derailed: The Schoolhouse to Jailhouse Track 18-20, 23 (2003) (documenting disparities by race and special education status in school-based arrests in select jurisdictions).
81. Howard N. Snyder, Office for Juvenile Justice and Delinquency Prevention, Juvenile Arrests 2003 9 (Aug. 2005), http://www.ncjrs.gov/pdffiles1/ojjdp/209735.pdf
82. NAACP Legal Defense and Educational Fund, Inc., Dismantling the School-to-Prison Pipeline 6 (2005), http://www.naacpldf.org/content/pdf/pipline/Dismantling_the_School_to_Prison_Pipeline.pdf.
83. James Bell & Laura John Ridolfi, W. Haywood Burns Institute, Adoration of the Question: Reflections on the Failure to Reduce Racial & Ethnic Disparities in the Juvenile Justice System (Dec. 2008)
84. Bart Lubow & Dennis Barron, Office of Juvenile Justice and Delinquency Prevention, Fact Sheet: Resources for Juvenile Detention Reform (November 2000).
85. See Memorandum from Loretta King, Acting Assistant Attorney General, U.S. Dep't of Justice, to Federal Agency Civil Rights Directors and General Counsels 3 (July 10, 2009) (on file with the authors).
86. See Jane Perkins, Ensuring Linguistic Access in Health Care Settings: Legal Rights and Responsibilities, National Health Law Program 27-28 (2003). Other contracts with state Medicaid agencies also contain similar provisions and should be available under a state's public records act.
87. U.S. Dep't of Educ., Office of English Language Acquisition (OELA), Language Use, English Ability, and Linguistic Isolation for the Population 5 to 17 Years by State: 2000 (2000), http://www.census.gov/population/cen2000/phc-t20/tab02.pdf.
88. U.S. Dep't of Educ., Office of English Language Acquisition (OELA), The Growing Numbers of Limited English Proficient Students (2005), http://www.ncela.gwu.edu/policy/states/reports/statedata/2003LEP/GrowingLEP_0304_Dec05.pdf.
89. See Advocates for Children of New York and the New York Immigration Coalition, Report from the Front Lines: What's Needed to Make New York's ESL and Bilingual Programs Succeed 12-26 (Feb. 7, 2001), http://www.advocatesforchildren.org/pubs/2005/eslbilingual.pdf.
90. Advocates for Children of New York and the New York Immigration Coalition, Creating a Formula for Success: Why English Language Learner Students Are Dropping Out of School, and How to Increase Graduation Rates 4 (June 2002), http://www.advocatesforchildren.org/pubs/2005/elldropout.pdf.
91. New York Immigration Coalition, Getting It Right: Ensuring a Quality Education for English Language Learners in New York 22 (Nov. 2008), http://www.thenyic.org/templates/documentFinder.asp?did=967.
92. New York Immigration Coalition, Denied at the Door: Language Barriers Block Immigrant Parents from School Involvement (Feb 19, 2004), http://www.thenyic.org/templates/documentFinder.asp?did=79.
93. Memorandum from the Dep't of Health, Educ., & Welfare Regarding Language Minority Children (May 25, 1970), http://www.ed.gov/about/offices/list/ocr/docs/lau1970.html.
94. These policies may be found at http://www.ed.gov/about/offices/list/ocr/ellresources.html.
95. See Letter from U.S. Dep't of Educ., Office for Civil Rights, to Superintendent of Joint Technical Educ. Dist., regarding OCR Case Number 08041022-D (June 21, 2004), http://www.ed.gov/about/offices/list/ocr/letters/evit08041022-d.html
96. Memorandum from the Dep't of Health, Educ., and Welfare, Office of the Sec'y, Identification of Discrimination and Denial of Services on the Basis of National Origin (May 25, 1970), http://www.ed.gov/about/offices/list/ocr/docs/lau1970.html.
97. Complaint to the Office for Civil Rights Concerning English Language Learners in the Pittsburgh Public Schools (May 16, 2005), http://www.elc-pa.org/pubs/downloads/litigation/lit-Somali%20OCRComplaint_Final__Final__l5-13-05.pdf.
98. Education Law Center, Agreement Reached to Improve Educational Opportunities for Somali Bantu Students in Pittsburgh (May 18, 2006), http://www.elc-pa.org/pubs/downloads/litigation/ell-Press%20Release%20Settlement%20Ed%20Law%20Center%20OCR%20(FINAL)%205-18-06.pdf
99. Joe Smydo, City Schools Settle Complaint Filed for Somali Refugees, Pittsburgh Post-Gazette, May 23, 2006, http://www.elc-pa.org/pubs/downloads/litigation/ell-Post%20Gazette%205-23-06.pdf
100. Emily Breon, School Districts Denying Refugee Students Equal Access to Education, Kids Counsel (Fall 2008), http://www.kidscounsel.org/kidscounsel%20news%20oct%2006.pdf.
101. U.S. Department of Education, Education for Homeless Children and Youths Grants for State and Local Activities, http://www.ed.gov/programs/homeless/index.html
102. No. 2:07-565 (E.D. La. February 1, 2007). The complaint is available at http://www.naacpldf.org/content/pdf/boisseau/BoisseauVPicard_NOLA_Complaint.pdf.
103. Mary M. Quinn et al., Youth with Disabilities in Juvenile Corrections: A National Survey, 71 Exceptional Children 339 (2005)
104. see also Sue Burrell & Lauren Warboys, Special Education and the Juvenile Justice System, OJJDP Juvenile Justice Bulletin 1 (July 2000).
105. Southern Poverty Law Center, SPLC Launches "School to Prison Reform Project" to Help At-Risk Children Get Special Education Services, Avoid Incarceration (Sept. 11, 2007), http://www.splcenter.org/news/item.jsp?aid=282.
106. David Osher et al., Schools Make a Difference: The Overrepresentation of African American Youth in Special Education and the Juvenile Justice System, in Racial Inequity in Special Education 98 (Daniel J. Losen & Gary Orfield eds., 2002) [hereinafter Racial Inequity]. Children with emotional disturbances are particularly at risk, as they are thirteen times more likely than other students with disabilities to be arrested while in school.
107. For the ten states with the lowest percentages, including Indiana, Virginia, Ohio, Texas, Louisiana, South Carolina, Mississippi, Georgia, Nevada, and Alabama, the rates range between 14 and 42 percent. See LSU Health Services Center, Human Development, http://www.accountabilitydata.org/National%20and%20State%20Data/National%20Maps/2009/Diploma%20Rate%2006-07.pdf (listing data in rank order for several consecutive years).
108. The rankings are also available at https://www.ideadata.org/StateRankOrdered-Tables.asp#partb.
109. See Mark G. Yudof et al., Education Policy and the Law 693 (2002) ("[T]he judicial successes in Mills and PARC spawned substantial popular and scholarly attention and similar lawsuits in more than thirty states. This litigation campaign was designed to demonstrate that the disabled have a constitutional entitlement to an appropriate education; it was also meant to persuade a broader public that the disabled deserved to be more equitably treated. In the Rehabilitation Act (Section 504) . . . and the Education for All Handicapped Children Act . . . Congress attended to these claims.").
110. Thomas Hehir, Eliminating Ableism in Education, 72 Harv. Educational. Rev. 1-32 (2002).
111. Nationally, in 2004, Black public school children, compared to whites, were approximately three times as likely to be labeled "mentally retarded" and twice as likely to be labeled "emotionally disturbed." Data Accountability Center, IDEA Part B Child Count (2004), Table 1-18, http://www.ideadata.org/tables28th/ar_1-18.xls.
112. See Linda M. Raffaele Mendez, Predictors of Suspension and Negative School Outcomes:A Longitudinal Investigation, in Deconstructing the School-to-Prison Pipeline 30 (Johanna Wald and Daniel J. Losen eds., 2003).
113. See generally Joseph B. Tulman, Disability and Delinquency: How Failures to Identify, Accommodate, and Serve Youth with Education-Related Disabilities Leads to Their Disproportionate Representation in the Delinquency System, 3 Whittier J. Child & Fam. Advoc. 3 (2003), http://www.law.udc.edu/resource/resmgr/facultydocs/tulman_disability_delinquenc.pdf.
114. For a detailed review of eligibility requirements and related issues, see Mark C. Weber, The IDEA Eligibility Mess, 57 Buff L. Rev. 83 (2009).
115. 20 U.S.C. § 1415(i)(2)(C)(iii). For frequent updates and commentary on the contours of rights and remedies pursuant to disability law, see http://www.wrightslaw.com.
116. See, e.g., settlements posted online at http://advocatesforchildren.org.
117. See also Daniel J. Losen, Challenging Racial Disparities: The Promise and Pitfalls of the No Child Left Behind Act's Race-Conscious Accountability, 47 Howard L.J. 243, 287-88 (2004).
118. Johanna Wald & Daniel Losen, Out of Sight: The Journey through the School-to-Prison Pipeline, in Invisible Children in the Society and Its Schools 23, 33 (Sue Brooks ed., 3d ed. 2007); The Advancement Project and the Civil Rights Project at Harvard University, Opportunities Suspended: The Devastating Consequences of Zero Tolerance and School Discipline Policies 13 (2000), http://www.advancementproject.org/publications/opportunity- to-learn.php;
119. ABA Juvenile Justice Commission, Zero Tolerance Policies: A Report (2001), http:// www.abanet.org/crimjust/juvjus/zerotolreport.html.
120. Thomas Hutton & Kirk Bailey, The Hamilton Fish Institute on School and Community Violence & Northwest Regional Educational Laboratory, School Policies and Legal Issues Supporting Safe Schools 7-8 (2007), http://gwired.gwu.edu/hamfish/merlin-cgi/p/ downloadFile/d/20708/n/off/other/1/nae/legalpdf/.
121. See also Lawrence F. Rossow & Jerry R. Parkinson, The Law of Student Expulsions and Suspensions 4-7 (2d ed. 1999).
122. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35, 37, 40, 51 (1973);
123. see also Butler v. Rio Rancho Pub. Sch. Bd. of Ed., 341 F. 3d 1197, 1200-01 (10th Cir. 2003) (sustaining school suspension because punishment was not "arbitrary" and did not "shock the conscience," given the offense);
124. Brewer v. Austin Indep. Sch. Dist., 779 F. 2d 260, 264 (5th Cir. 1985) (applying rational basis test to substantive due process challenge to school suspension).
125. Smith v. Mount Pleasant Pub. Sch., 285 F. Supp. 2d 987, 996 (E.D. Mich. 2003).
126. See also Flaherty v. Keystone Oaks Sch. Dist., 247 F. Supp. 2d 698, 702-04 (W.D. Pa. 2003) (invalidating on vagueness grounds a school rule that prohibited conduct "that school officials deem to be 'inappropriate, harassing, offensive or abusive' without defining those terms or limiting them in relation to geographic boundaries . . . or to speech that causes a material and substantial disruption to the school day").
127. See Pollnow v. Glennon, 594 F. Supp. 220, 221 n.2 (S.D. N.Y. 1984) (permitting school discipline for out-of-school conduct because conduct may adversely affect the educative process or endanger the health, safety, or morals of pupils within the education system for which the school authorities are responsible); see generally Daniel E. Feld, Annotation, Right to Discipline Pupil for Conduct Away from School Grounds or Not Immediately Connected with School Activities, 53 A.L.R. 3d 1124 (2006) (collecting cases on right of schools to discipline pupils for off-campus conduct).
128. Brian Kleiner et al., National Center for Education Statistics, Public Alternative Schools and Programs for Students at Risk of Education Failure: 2000-01 1 (2002), http:// nces.ed.gov/pubs2002/2002004.pdf (listing factors for placement in an alternative school or program, including poor grades, truancy, pregnancy, disruptive behavior, or referral by a juvenile court).
129. Camilla A. Lehr et al., Institute of Community Integration, Alternative Schools:Findings from a National Survey of the States, Research Report 2, 12 (2004), http://ici. umn.edu/alternativeschools/publications/alt_schools_report2.pdf [hereinafter Lehr et al., Alternative Schools Report 2] (estimating that, within the twenty states that responded to surveys to state departments of education, 1,023,260 students enrolled in such programs in 2001-02).
130. See, e.g., Lauren Roth, New Alternative School Puts Future on Display, Virginia Pilot and Ledger Star, Dec. 6, 2008, at 3 (noting a brand-new separate facility); Kevin C. Dilworth, E. Orange to Discuss Fate of an Old School: State to Help Chart Plan for Shut Carver, Newark Star-Ledger, Oct. 3, 2008, at 25 (noting trailers near the mainstream school).
131. See also Camilla A. Lehr, National Center on Secondary Education and Transition, Alternative Schools and Students with Disabilities: Identifying and Understanding the Issues 1 (Oct. 2004), http://www.ncset.org/publications/info/NCSETInfoBrief_3.6.pdf;
132. Camilla A. Lehr & Cheryl M. Lange, Institute on Community Integration, Alternative Schools and the Students They Serve: Perceptions of State Directors of Special Education (2003), http://ici.umn.edu/products/prb/141/141.pdf.
133. See generally Augustina H. Reyes, Disciplinary Alternative Education Programs, in Discipline, Achievement, and Race: Is Zero Tolerance the Answer? 47 (Augustina H. Reyes ed., 2006);
134. Margaret Hadderman, Clearinghouse on Educational Policy and Management, Alternative Schools, in Trends and Issues: School Choice (2002), http://eric. uoregon.edu/trends_issues/choice/alternative_schools.html.
135. For a discussion of the incentives created by the No Child Left Behind Act to deny alternative education to expelled students, see Maureen Carroll, Comment, Educating Expelled Students after No Child Left Behind: Mending an Incentives Structure That Discourages Alternative Education and Reinstatement, 55 UCLA L. Rev. 1909 (2008). But some progressive education advocates reason that this exemption may be warranted because the progress of these students may be better measured through a manner other than highstakes testing. It is also worth noting that in some jurisdictions, students are placed in disciplinary alternative schools for longer than a full academic year. In theory, then the state should be held accountable for these students' performance.
136. See Tenn. Code Ann. § 49-1-207; see generally Tennessee State Board of Education, Alternative Education Programs, Models, and Standards (2008), http://www.taea.net/ images/ProgramStandards.pdf.
137. Complaint, M.H. v. Atlanta Indep. Sch. Dist., No. 2008-CV-147828 (Super. Ct. Fulton County, Mar. 11, 2008), http://www.aclu.org/images/asset_upload_file173_34423. pdf. For more information about this lawsuit, see http://www.aclu.org/crimjustice/ juv/34422prs20080311.html.
138. David E. Grossmann & Maurice Portley, National Council of Juvenile & Family Court Judges, Juvenile Delinquency Guidelines: Improving Court Practice in Delinquency Cases 151 (2005);
139. see also Marie Leech & Carol Robinson, City Schools Rely on Arrests to Keep Order, Birmingham News, Mar. 22, 2009, at 1A (documenting concerns regarding the criminalization of students resulting in the "flooding of Family Court with cases that once would have been handled in a principal's office" and quoting Presiding Family Court Judge Brian Huff as stating, "But we're arresting children for offenses no one should be arrested for"); American Civil Liberties Union, Race and Ethnicity in America: Turning a Blind Eye to Injustice 149 (2007) (documenting statement by a juvenile-court judge in Massachusetts that he handles more school discipline in his courtroom today than he did in his former position, as a public school principal); Sara Rimer, Unruly Students Facing Arrest, Not Detention, N.Y. Times, Jan. 4, 2004 (reporting that juvenile-court judges in Ohio, Virginia, Kentucky, and Florida have complained about the volume of school misconduct cases overwhelming their courtrooms).
140. Paul Hirschfield, The Uneven Spread of School Criminalisation in the United States, 74
141. See Judith A. Browne, Advancement Project, Derailed: The Schoolhouse to Jailhouse Track 18-20, 23 (2003) (documenting disparities by race and special education status in school-based arrests in select jurisdictions).
142. For an excellent discussion of challenges to such practices in a defensive context, that is, representing individuals accused in delinquency and criminal cases, see Marsha L. Levick & Robert G. Schwartz, Changing the Narrative: Convincing Courts to Distinguish between Misbehavior and Criminal Conduct in School Referral Cases, 9 D.C. L. Rev. 53 (2007);
143. Elizabeth Calvin et al., National Juvenile Defender Center, Juvenile Defender Delinquency Notebook (2d ed. 2006), http://www.njdc.info/delinquency_notebook/interface.swf.
144. Indeed, a large number of legal scholars have published articles discussing this issue in recent years. See Bryan C. Hathorn, Case Note, Constitutional Law-Searches, Seizures, & Confessions-Constitutional Protections for Students in Public Schools, 76 Tenn. L. Rev. 211 (2008);
145. Eleftharia Keans, Note, Student Interrogation by School Officials: Out with Agency Law and In with Constitutional Warnings, 27 B.C. Third World L.J. 375 (2007);
146. Paul Holland, Schooling Miranda: Policing Interrogation in the Twenty-First Century Schoolhouse, 52 Loy. L. Rev. 39 (2006);
147. Jennie Rabinowitz, Note, Leaving Homeroom in Handcuffs: Why an Over-Reliance on Law Enforcement to Ensure School Safety Is Detrimental to Children, 4 Cardozo Pub. L. Pol'y & Ethics J. 153 (2006);
148. Gregory R. Mueller, Detectives Dressed like Teachers: Circumventing the Constitutional Rights of New Jersey Students, 236 N.J. Lawyer 25 (2005);
149. Christina L. Anderson, Double Jeopardy: The Modern Dilemma for Juvenile Justice, 152 U. Pa. L. Rev. 1181, 1194-1200 (2004);
150. Josh Kagan, Reappraising T.L.O.'s "Special Needs" Doctrine in an Era of School-Law Enforcement Entanglement, 33 J.L. Educ. 291 (2004);
151. Michael Pinard, From the Classroom to the Courtroom: Reassessing Fourth Amendment Standards in Public School Searches Involving Law Enforcement Authorities, 45 Ariz. L. Rev. 1067 (2003);
152. Jacqueline A. Stefkovich & Judith A. Miller, Law Enforcement Officers in Public Schools: Student Citizens in Safe Havens? 1999 B.Y.U. Educ. & L.J. 25 (1999);
153. Betsy Levin, Educating Youth for Citizenship: The Conflict between Authority and Individual Rights in the Public School, 95 Yale L.J. 1647 (1986).
154. See generally Julius Menacker & Richard Mertz, State Legislative Responses to School Crime, 85 Educ. L. Rep. 1 (1993) (reviewing state statutes in thirty-six states relating to school crime specifically).
155. The Annie E. Casey Foundation, 2008 Kids Count Data Book 7 (2008), http://www. aecf.org/KnowledgeCenter/PublicationsSeries/KCDatabookProds.aspx [hereinafter 2008 Kids Count Data Book].
156. Melissa Sickmund et al., U.S. Department of Justice, Census of Juveniles in Residential Placement Databook (2008), http://www.ojjdp.ncjrs.gov/ojstatbb/cjrp/.
157. Mark A. Greenwald, Florida Department of Juvenile Justice, Delinquency in Florida's Schools: A Four Year Study 7, 12 (2009).
158. See Gary Sweeten, Who Will Graduate? Disruption of High School Education by Arrest and Court Involvement, 23 Just. Q. 462, 473, 478-79 (2006);
159. Terence P. Thornberry et al., The Causes and Correlates Studies: Findings and Policy Implications, 9 Juvenile Just. 3, 12 (Sept. 2004);
160. Jeff Grogger, Arrests, Persistent Youth Joblessness, and Black/White Employment Differentials, 74 Rev. Econ. & Stat. 100, 105-06 (1992).
161. He Len Chung et al., MacArthur Foundation, Juvenile Justice and the Transition to Adulthood (Feb. 2005), http://www.transad.pop.upenn.edu/downloads/chung-juvenile%20just%20-formatted.pdf.
162. Barry Holman & Jason Zeidenberg, Justice Policy institute, The Dangers of Detention:The Impact of Incarcerating Youth in Detention and Other Secure Facilities (Nov. 2006), http://www.cfjj.org/Pdf/116-JPI008-DOD_Report.pdf.
163. Sue Burrell & Loren Warboys, Office for Juvenile Justice and Delinquency Prevention, Special Education and the Juvenile Justice System (July 2000), http://www.ncjrs.gov/ html/ojjdp/2000_6_5/contents.html.
164. Mary Magee Quinn et al., Youth with Disabilities in Juvenile Corrections: A National Survey, 71 Exceptional Child 339 (2005);
165. Gail A. Wasserman et al., Assessing the Mental Health Status of Youth in Juvenile Justice Settings, OJJDP Juvenile Justice Bulletin 1 (Aug. 2004), http://www.ncjrs.gov/pdffiles1/ojjdp/202713.pdf;
166. Lex Frieden, National Council on Disability, Addressing the Needs of Youth with Disabilities in the Juvenile Justice System (May 2003), http://www.ncd.gov/newsroom/publications/2003/juvenile.htm.
167. Bart Lubow & Dennis Barron, Office of Juvenile Justice and Delinquency Prevention, Fact Sheet: Resources for Juvenile Detention Reform (Nov. 2000), http://www.ncjrs. gov/pdffiles1/ojjdp/fs200018.pdf. For an excellent discussion on the history and current status of disproportionate minority contact with the juvenile justice system
168. see James Bell & Laura John Ridolfi, W. Haywood Burns Institute, Adoration of the Question: Reflections on the Failure to Reduce Racial & Ethnic Disparities in the Juvenile Justice System (Dec. 2008), http://burnsinstitute.org/article.php?list=type&type=16.
169. National Council on Crime and Delinquency, And Justice for Some: Differential Treatment of Youth of Color in the Justice System (Jan. 2007), http://www.nccd-crc.org/ nccd/pubs/2007jan_justice_for_some.pdf [hereinafter And Justice for Some].
170. See Katherine Twomey, The Right to Education in Juvenile Detention under State Constitutions, 94 Va. L. Rev. 765 (2008);
171. P.E. Leone, T. Price & R.K. Vitolo, Appropriate Education for All Incarcerated Youth: Meeting the Spirit of P.L. 94-142 in Youth Detention Facilities, 7 Remedial and Special Education 4, 9-14 (1988). For an excellent discussion of this subject in the context of human rights law
172. see Marsha Weissman et al., Dignity in Schools Campaign, The Right to Education in the Juvenile and Criminal Justice Systems in the United States, Submission to Vernor Munoz, Special Rapporteur on the Right to Education 6 (Dec. 2008), http://www.dignityinschools.org/files/US_Prisoner_Education. pdf (citing R.M. Foley, Academic Characteristics of Incarcerated Youth and Correctional Educational Programs, 9 J. of Emotional and Behavioral Disorders 248-59 (2001)).
173. P.E. Leone & S.M. Meisel, Improving Education Services for Students in Detention and Confinement Facilities, 17(1) Child. Legal Rts. J. 2-12 (1997).
174. Sarah Livsey, Melissa Sickmund & Anthony Sladky, U.S. Department of Justice, Juvenile Residential Facility Census, 2004: Selected Findings 10 (Jan. 2009), http://www. ncjrs.gov/pdffiles1/ojjdp/222721.pdf.
175. Cora Roy-Stevens, OJJDP Fact Sheet, Overcoming Barriers to School Reentry (Oct. 2004), http://www.ncjrs.gov/pdffiled/ojjdp/fs200403.pdf.
176. Ronald D. Stephens & June Lane Arnette, Office for Juvenile Justice and Delinquency Prevention, From the Courthouse to the Schoolhouse: Making Successful Transitions 8 (Feb. 2000), http://www.ncjrs.gov/pdffiles1/ojjdp/178900.pdf.
177. For a description of state legislation, see Angeline Spain, The National Evaluation and Technical Assistance Center for the Education of Children and Youth Who Are Neglected, Delinquent, or At-Risk, State Legislation Strengthening Transition, http:// www.neglected-delinquent.org/nd/resources/trans_strength.asp.