Excerpted From: Alicia R. Jackson, Inherently Unequal: The Effect of Structural Racism and Bias on K-12 School Discipline, 88 Brooklyn Law Review 459 (Winter, 2023) (432 Footnotes) (Full Document)


AliciaRJackson“The true character of society is revealed in how it treats its children.”-- Nelson Mandela

Overly harsh and discriminatory schooldiscipline policies and biased decision-making practices have led to the disproportionate punishment of Black children, causing them to be excluded from classroom learning and creating a separate and unequal education structure. The disparate impact of these disproportionately applied discipline policies and practices has deprived Black students of their constitutional right to an equal education by pushing them out of the classroom, resulting in millions of days of lost instruction annually.

Discipline is a complex problem and is classified as the third most important legal issue confronting educators. Although it is acknowledged that schools have the right to discipline children, this authority is limited and cannot be used indiscriminately. As such, the focus of this article is not on whether schools have a right to discipline, but rather on how they discipline and how those practices have a disparate impact on Black students.

In one of the earliest education cases in the United States, Meyer v. Nebraska, the Supreme Court in 1923 opined, “[t]he American people have always regarded education and [the] acquisition of knowledge as matters of supreme importance.” Almost thirty years later, in the 1954 landmark case Brown v. Board of Education, the Court held that racial segregation in public schools violated both federal law and the Fourteenth Amendment to the Constitution. Later, in its 1982 decision, Plyler v. Doe, the Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits any state that has a public school system from denying any child living in that state equal access to schooling. Thus, when Black children in public schools are disproportionately punished and subsequently excluded from educational opportunities based on discriminatory practices and policies, they are victims of the separate but unequal school setting that the Court unanimously rejected in Brown.

Increasing educational inequalities, coupled with research suggesting that the disciplinary policies fueling the suspension and expulsion of Black students are ineffective, heightens both concern and urgency. According to the American Academy of Pediatrics, expulsion and out-of-schoolsuspension are detrimental to the intended outcomes and should only be used as a last resort in “extreme and dangerous” situations. If they arise, these situations should be evaluated “individual[ly] rather than [with] a blanket policy.” Further research found that educators' “get-tough” attitude, reflected in the adoption of zero-tolerance policies, is unsuccessful “and lead[s] to disproportionate discipline for students of color.” Over a three year period, “researchers found that 26 [percent] of ... Black students received at least one suspension for a minor infraction ... compared with just 2 [percent] of white students.” Minor infractions included violations of dress codes, language policies, or cell phone use during class time.

For decades, countless public and private-sponsored studies have documented major disparities in student discipline rates. “[B]lack K-12 students are 3.8 times as likely ... to receive one or more out-of-schoolsuspensions” as white students in the same grades, often for the same offenses. But, without a full understanding of the origins and impact of structural racism, some members of society may still struggle to accept that bias and discrimination exist in the school setting. In the education context, structural racism is the formal systems, policies, and processes responsible for perpetuating the disparate impact of discipline policies in US schools. These discriminatory policies and processes, coupled with the bias of discipline decision makers, contribute to the disparities in discipline.

The disproportionate and discriminatory treatment of children in public schools should concern all citizens. This is even more true in today's post-Brown context, as education is more segregated, and inequality in education has only increased.

While desegregation, school funding litigation, and federal policy significantly reduced educational inequality during the second half of the twentieth century, that inequality has steadily increased ever since. The percentage of intensely racially segregated nonwhite schools, for instance, has more than tripled over the last twenty-five years.

Existing literature and studies have examined disparity in discipline in the K-12 setting and the resulting impact on Black students. Building on that scholarship, this article uses Critical Race Theory to examine structural racism and bias in the school setting. Structural racism and bias are major contributing factors to disproportionate punishment, which directly impacts students' access to education. This article highlights the relationship between educational inequality and structural racism in the United States and asserts that existing civil rights laws and the Fourteenth Amendment require immediate federal intervention to address schooldiscipline disparities. Ultimately, it stresses that fulfilling Brown's promise of equal education cannot be achieved without a collective commitment from the citizenry, the states, and the federal government.

Part I of this article explores international education law and policy, as well as US education policy and regulations by examining Supreme Court cases, federal involvement in education, and the Tenth Amendment of the US Constitution. Part II defines structural racism and examines it as a root cause of education inequality by exploring the pervasive and discriminatory institutional barriers to education for Black children, from slavery until today. Part III covers discipline policies and practices and the impact of decision makers' explicit and implicit bias on schooldiscipline. Part IV examines schooldiscipline rates using data from over 99 percent of US school districts, and the direct impact of discipline disparities on students and society, including poverty, crime, and incarceration rates. Part V provides strategies for addressing schooldiscipline disparities, from cultural competency training and having Black teachers in the classroom to greater oversight and accountability by state lawmakers and the US Department of Education. This article is meant to serve as a tool to minimize the effects of educational inequality and structural racism in the United States while asserting that existing civil rights laws and the Fourteenth Amendment require immediate federal intervention to address schooldiscipline disparities.

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With so much racial division in the United States, there needs to be a collective rallying cry in the protection of the nation's children. That rallying cry should be “All Children Matter” and “Education Matters.” When we treat students with compassion and grace, we teach them that they are worthy and that they are our future. When we punish them harshly, we teach them that they are unworthy and do not have a future. Treating children disparately through schooldiscipline policies that are applied disproportionately to Black students will keep our nation divided. Children grow up. The seeds we plant into their impressionable beings will blossom and eventually bear fruit; we need to decide the harvest we want to reap as a country. Instead of being reactive to the results of our failures, we should focus on being proactive and finding solutions. We should focus on first fixing our bias and next fixing our schools.

Assistant Professor of Law at Stetson University College of Law.