K12 Education and Juvenile Justice

-- By MarinaHernandez - 26 Feb 2018

Introduction

This spring break I will be traveling to NOLA to participate in a pro bono caravan with the Orleans Public Defenders (ODP). I am fully aware that I presently have nearly zero substantive legal skills to be of any real assistance to this office, and see it as a learning opportunity on issues facing the criminal justice system, some of which have profoundly affected my life. Through researching the organization I have learned that in addition to the services offered to adults facing criminal prosecution, OPD also devotes significant resources to defend children in juvenile proceedings. As this trip gets closer, I have found myself reflecting on the purpose of criminal juvenile proceedings, and the function that criminal law plays in regulating the lives of young black and brown children. While it is easy to be frustrated with the laws that stigmatize and marginalize children of color, I am coming to the belief that the criminal laws targeting juveniles are more a downstream product of the educational institutions and policies that act as a funnel for black and brown students into the juvenile justice system.

Juvenile Court’s Feeder System

Prior to law school I worked for a charter management organization in a predominantly low-income community comprised of Black and Latino students, with most of my Latino students being recent immigrants. Because of the systemic disadvantages faced by these children, this charter organization promotes a mantra of “high expectations” for all things in the academic environment. On the surface, this sounds like a wonderful mission - believing children can achieve at a high level (both academically and behaviorally) and holding them accountable. However what this actually looks like in practice is five-day suspensions for temper tantrums and in-school suspensions for brightly colored, fake nails. Many well-intentioned adults could justify these punishments on the basis of helping children become functional adults who are not on the receiving end of oppressive law enforcement efforts in their communities. However the practice of “high expectations” coupled with harsh disciplinary consequences likely does little to promote desirable behaviors, but instead makes students of color comfortable with severe punishments and potentially instills a false belief that they are outsiders to the neat social framework of public education.

Black students represent just 16% of the student population but represent 32-42% of students suspended or expelled, and it isn’t news that Black, Latino and students with disabilities are suspended at a disproportionately high rates. While this in itself is problematic and likely demonstrates the negative predispositions teachers and school administration have towards children of color and those with disabilities, I am wondering what principles or values are being served by school suspensions and police detainment arising from school-related incidents. Is it for rehabilitation of the student who committed the wrong? Is it to separate the child for safety reasons? Each of these may provide a compelling reason to remove a child from the school environment despite the adverse effects on their school performance and social skills. I however believe the true justification used by (mostly white) adults in power is justice and deterrence. Some may hold the belief that if a child does something wrong in the school environment, it is only fair for them to be disciplined. Said discipline may reduce the incidence of such behavior among that child and discourage it among others.

In Lawyerland Judge Day poses the idea that the law is a poor way to influence the behavior of others. The discretion that courts use to impose the law lacks substantive power to promote the behaviors and decisions we wish to see. I believe schools are microcosms of Day’s opinion in that hard-lined rules with intense discipline for failure to meet expectations is a poor way to achieve our goal of making children into productive, happy and successful adults. What’s worse is that such measures are seemingly not needed for their white, affluent counterparts in the nearby school district. Additionally, suspensions do little to actually help a child or prevent him/her from committing the same offense again. To the contrary, students that encounter intense disciplinary measures in middle school are far more likely to end up in the juvenile justice system than those that are not. School policy and rules that are in theory enacted with the intent to positively influence student behavior may actually serve a contradictory purpose for our students of color.

Restorative Justice in Schools

There are no easy solutions to complex problems, but we can definitely do better by these students. Regulating student behavior through punitive sanctions likely harms students and promotes negative behaviors more than positive and productive ones. Making schools safer for Black and Brown students by overhauling existing disciplinary structures is necessary to ensure students are receiving the attention and support needed to thrive. I believe that police officers should not have a normalized presence on school campuses and should only be contacted in extreme circumstances. All measures to keep a child in school with restorative justice practices should be exhausted before a child is removed from the school environment and subject to a suspension. Additionally, suspensions should never be utilized for non-violent behaviors, such as dress code violations or using a cell phone in school.

Perhaps for even more violent behaviors such as cursing at teachers and fighting among peers, an alternative to suspensions can be found. Some districts such as Oakland and New York are making changes to utilize restorative justice practices by removing suspension as an option for insubordination and preventing suspensions in the third grade and below altogether. As Judge Day might argue, harsh punishments and a deterrence theory are likely ineffective ways to bring about the changes we wish to see in children’s school behavior. Love, empathy and forgiveness as opposed to school disciplinary codes may promote optimal social behaviors and ultimately productive adults.

One way to make the essay better is to tighten up the writing, removing whatever doesn't need to be there. The introduction can be shortened or altered to get the reader more directly to the actual topic. Many paragraphs can be made more compact, which will leave room to say more.

On the substance, the route to improvement is to make richer, once again, by tightening at the conceptual level. Holmes asked, "does punishment deter?" We still don't know, but restorative justice processes in schools are not only designed to deter, but also to instruct. What punishment instructs in, as you say, is the expectation of punishment and the taste of injustice. So you can put your message more succinctly while only making it stronger.

You can also put the idea in current social context, by looking at the Obama Administration "Dear Colleague" letter on discrimination in school discipline and the predictable pendulum swing away now going on in the DeVos Education Department. This allows you to put something around your policy discussion that doesn't have to end with the comparative doubtfulness of "Love, empathy and forgiveness as opposed to school disciplinary codes may promote optimal social behaviors."

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