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Excerpted from: David Dante Troutt, Trapped in Tragedies: Childhood Trauma, Spatial Inequality, and Law, 101 Marquette Law Review 601 (Spring, 2018) (432 Footnotes) (Full Document)


David Dante TrouttGunshots and other psychologically traumatic experiences reveal a lot about the structure of inequality in the United States. In economically marginalized environments, a single gunshot can live on indefinitely, beginning with the flesh it tears, the memories it traumatizes, and the stereotypes it confirms in the minds of distant others. That lone traumatic event can travel from barrel to bone and beyond over the space of generations, marking and defining the places where opportunity dies or thrives. Violence begets violence and also efforts to ensure its absence. Thus, the child witness who fears, sees, and relives violence may react to the experience with post-traumatic stress disorder (PTSD) or other conditions that potentially re-wire her brain, impair cognitive abilities, imperil learning, and condition her body for an array of life-threatening addictions and illnesses over time. On the other hand, many people who learn about the gunshot from local TV news may see a sad but distant routine of murders by young black men of other young black men. They often react to the shooting by supporting policy decisions that maintain the safe distance between the world of shootings and their own, such as rejecting affordable housing or new bus lines that cross poor neighborhoods. These dichotomous reactions organize this legal analysis of the child trauma crisis.

In the last two decades, the myriad harms from psychological trauma have garnered considerable attention from neuroscience, the therapeutic professions, and educators. The public is discovering the crippling effects of PTSD on returning combat veterans, victims of international rape and sex trafficking, and the children of war and natural disaster. Psychological trauma reflects our species' natural reactions to atrocity. Its effects can linger intergenerationally through the descendants of Holocaust survivors and African-American slaves. It is experienced through various forms of violence, abuse, and neglect. Yet it is far more common among children than many of us believed. Privacy rules and beliefs make precise numbers impossible, and uniform metrics do not exist. Based on reported child abuse, domestic violence, and the numbers of children in traumatic placements such as foster care, "the most moderate estimates suggest that at any given time, more than eight million American children suffer from serious, diagnosable, trauma-related psychiatric problems. Millions more experience less serious but still distressing consequences."

However, children--mostly black and Latino--who live in areas of concentrated poverty are vastly overrepresented in the incidence of trauma. The chronic and unpredictable traumas to which they are exposed are deemed "complex," the most disabling kind. In 2015, families in Chicago's poorest neighborhoods were exposed to 2,939 shootings, including 468 murders, in which several of the victims were children. In 2017, the city was on pace to exceed the 4,300 shootings and 750 murders there in 2016. The shocking effects of the resulting trauma on children are reflected in neurobiological changes during formative periods of growth, psychological injury such as PTSD, socio-emotional development, academic difficulties, and lives shortened by related illnesses, substance abuse or more violence. As psychiatrist Judith Herman wrote, "[T]he person with unrecognized post-traumatic stress disorder is condemned to a diminished life, tormented by memory and bounded by helplessness and fear." Yet despite the clear crisis presented by so much trauma, these effects on children are often missed.

This Article offers an alternative analysis by demonstrating the legal construction of this crisis and arguing that childhood psychological trauma is the symptomatology of legally sanctioned inequality. The scant attention paid to the child trauma crisis by legal scholars and practitioners defies the clear evidence that traumatic experiences disproportionately proliferate in isolated, segregated areas. The multidisciplinary literature will show that the severest conditions of structural (or place-based) inequality are internalized by human beings through complex psychological trauma, with devastating effects on health as well as social capital and personal mobility. Therefore, the crisis and its remedies should be re-framed within the rules of spatial context commonly encountered in legal analysis--particularly, civil rights and local government law.

This reframing begins with a theoretical understanding of structural inequality. Structural inequality is the institutional organization of spatial inequality. In the United States, the legal norm of equality is understood in terms of equal access to opportunity. Structural denials of opportunity come about through the decisions and policies of institutions--e.g., schools, housing policy, transportation spending, and law enforcement. Yet the same institutions function very differently to produce or deny opportunity depending on where a person (especially a child) lives. Thus, personal opportunities are often mediated by place, or residency, because of the differences in rules and resources by which key institutions operate.

From this premise, legal analysis can bring to a multidisciplinary crisis important distinctions between the sources and causes of trauma and the remedial differences between intervention and prevention approaches. Psychologists and public health professionals detail the sources of psychological injury in repeated exposure to, for example, child abuse and neglect, domestic violence, rape, and community violence. Criminologists have long attributed the cause of such injury to predatory individuals and volatile circumstances. I argue that the spatial context for these recurring events is at least as important in assigning causation for the devastating effects on people's minds and bodies. The causes of psychological trauma are those forces that make particular environments chronically traumatic. These are the forces of racial and economic isolation that structure and reproduce fundamental inequality--the residential and institutional segregation of people by place and resources.

This distinction between source and causation should inform legal approaches to remediating the epidemic of childhood psychological trauma in poor areas. As we will see, many fields have long been thinking about the problem of trauma, especially among children. Dr. Susan Cole was among the first to recognize that state law changes in the mid-90s designed to facilitate zero-tolerance disciplinary policies in poor schools were inadvertently criminalizing children who were acting out the trauma of witnessing domestic violence. Rather than treat them for the horrors they had experienced, many were being punished. Schools, she and others argued, had an obligation to do more on behalf of these children. I share the assumption that schools are the correct institutional actor for initial intervention; schools see all children and have longstanding legal duties of care. Schools are also institutions whose rules and practices are central to both civil rights law (e.g., federal equal protection, state constitutional requirements, and federal and state disability law) and local government (e.g., police powers and taxing authority). Designing effective interventions to address the developmental and behavioral effects of childhood trauma is a complex pedagogical and therapeutic challenge that must be undertaken. I will assess many legal approaches, including classroom accommodations and teacher training passed into law in states like Massachusetts.

Yet interventions may be both too limited and too problematic to address the scope of the trauma problem, which also demands emphatic prevention efforts. Borrowing from public health, we do not seek merely to reduce or contain a devastating outbreak of disease. We aim to prevent its transmission entirely, if possible. A focus on intervention may tax the institutional capacity of already overtaxed institutions, such as high-poverty schools. Efforts to train teachers in "trauma-sensitive" pedagogy have their place, but the paradigm shift risks becoming the focus, giving rise to a cottage industry of trainers and training. Meanwhile, the causes of psychological trauma may continue unabated. The continuation of widespread misery can have severe unintended consequences. Depending on the intervention, school-based efforts to treat young people exposed to trauma may pathologize them instead. I examine a history of well-intentioned efforts by child welfare institutions that perpetuated harmful notions of African American mental dysfunction in the name of protection.

However, the strongest basis for combining prevention with intervention is the command to address causation. If structural, or spatial, inequality is the leading cause of the sources of traumatic experience among U.S. children, we must address spatial inequality. This is a mandate for which law is uniquely qualified. It entails a theoretical understanding of structural inequality as being rooted in the inequitable distribution of institutional resources that is a feature of our racially and economically stratified regions. The control of these institutions--their rules and their resources--are functions not merely of school policy or access to therapeutic services or trauma-sensitive policing. Rather, they are functions of local government law and the relationship among local governments.

My argument proceeds as follows.

In Part II, I develop the connection between complex childhood trauma and spatial inequality. This entails discussion of the sources and incidence of trauma that concentrate in economically disadvantaged communities as well as the frameworks for examining these sources offered by the public health and criminological fields. I conclude this Part by distinguishing these disciplines from the legal analysis compelled by a theory of structural inequality. I then set out that theory as the appropriate frame for both the problem and proposed solutions.

In Part III, I describe the problem of childhood traumatic injury in greater detail. This includes a review of the psychological literature and the results of an original study performed in conjunction with my colleagues at University Behavioral Health Services at Rutgers University. To further demonstrate how unstable environments produce lasting trauma reactions in children, I examine the international literature on child trauma during war and natural disaster. Human beings are designed to process traumatic events in strikingly similar ways.

Part IV turns to remedies, beginning with school-based legal interventions, such as special education classification, litigation, and trauma-sensitive learning environments. I analyze legal interventions under the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act, and Title II of the Americans with Disability Act (ADA). Despite the considerable promise of these approaches, I conclude this Part with a lengthy critique of interventions based on the risks of pathologizing (or "Othering") already marginalized groups and the lack of institutional capacity.

Finally, in Part V the argument comes full circle. By then I will have shown that complex trauma is the severe psychological symptomatology of structural inequality. Recognition of this epidemiological fact directs approaches to prevention. While structural inequality is too complex and long-lasting a condition to remedy in a single article, I offer new ways to think about ameliorating it in order to address the crisis facing so many children. The approach is rooted in civil rights and local government law, including a rethinking of the latter's scope to include the institutions with which poor children and their families interact the most. The analysis reveals common "set-backs" that stress and complicate fragile families and may reflect both the inputs and outputs of traumatic experience. Then, I outline two paths to prevent these destabilizing "set-back dynamics." One is to promulgate more mobility options--that is, "untrapping" families, many of whom would naturally move away from traumatic environments if they could. The other is to think about institutional reform advocacy through the lens of trauma reduction-- here, "unencumbering" poor and working-class families from the rules and practices that either engender trauma or compound it for children. The hope for now is not elixir but elucidation--of the connections between law and a growing public health crisis and toward the path of equitable change.

. . .

The growing crisis in childhood psychological trauma reflects the worst aspects of entrenched structural inequality. It reveals some of the most intense and enduring effects of a society long divided by race, class, and place. The harms experienced by its youngest victims are expressed in all the human ways possible--emotionally, educationally, psychologically, behaviorally, physically, and epigenetically--then transmitted to distant and proximal others in a destructive spiral over lifetimes. The costs to those trapped in traumatic environments are incalculable. The costs to a society that keeps them there are exponential. Yet the cause is structural, which exempts no one.

I have argued that the fundamental causal nexus between early trauma and spatial inequality requires legal intervention. In making this argument, I examined psychological, public health, and education literature on childhood trauma. I then analyzed school-based legal interventions through innovative uses of special education laws and state-based school reforms. These show both promise and peril, because of the risk of doing too little and of pathologizing poor people of color too much. Instead, I argued that structural inequality theory compels prevention approaches. I offered a framework for two kinds--those that offer mobility out of areas where "set-back dynamics" proliferate and those that focus on reforming the very institutions that compound those dynamics. To advance state interests in good government, public health, and social inclusion, I illustrated approaches that rely mainly on local government and civil rights law paradigms. Complex childhood trauma reflects a dizzying array of issues, many of which we see in other countries crippled by war and natural disaster. Hopefully, I have offered a sturdy framework, if not fixes, from which to start.

Professor of Law, Justice John J. Francis Scholar and Director, Center on Law, Inequality and Metropolitan Equity, Rutgers Law School-Newark.