Excerpted From: Gerard Robinson, Addressing the School-to-Prison Pipeline Through Three Nontraditional Pathways, 109 Virginia Law Review Online 49 (April, 2023) (124 Footnotes) (Full Document)


GerardRobinsonAnalogous to Nathaniel Hawthorne's critique of his leaders' decision to use punishment as a sign of public accountability, and his adoption of the phrase “the black flower of civilized society” to describe the prison, our leaders in the White House, Congress, and the Supreme Court made several decisions about law and social policy between 1965 and 1973 that created a new culture of public accountability for uses (or misuses) of taxpayers' money. By doing so, they inadvertently made it harder to invest in public education, but easier to invest in public prisons. The seeds that germinated from those decisions grew into a black flower whose bloom shaped American modernity for the next fifty years: the school-to-prison pipeline.

The San Antonio Independent School District v. Rodriguez decision of 1973 fertilized this flower. The United States Supreme Court held in Rodriguez that the U.S. Constitution did not protect education as a fundamental right; therefore, students could not challenge in federal court the funding disparities in Texas or elsewhere that privileged wealthier school districts while greatly disadvantaging poorer ones. Even while acknowledging the need for higher quality schools and more equality in educational opportunity, the Court eliminated a federal constitutional remedy to achieve greater equity in school funding. This left educational opportunity to the discretion of state legislatures and courts. The Court contended that federalism constraints and contested foundational questions in education policy led it to decline to intervene.

The Court's decision to reject the claim that education is a fundamental right in Rodriguez, and take a “hands-off” approach to federal support to fund public schools, did three things. First, the decision provided political cover to elected state and local officials who were already involved in ideological debates back home about school finance and equity. Second, it started what I will call a War on Property Taxes. Third, the ruling raised one big question for governors and elected officials to answer: How will state legislatures, education departments, and local school districts operationalize the notion of equity, and eventually adequacy, in light of Rodriguez given the different visions of public schooling that are supported by a living state constitution?

So, while the Court's ruling in Rodriguez supported a “hands-off” approach to funding public schools, it is worth noting that leaders in the White House and Congress during the same period of time were supporting a “hands-on” approach by implementing a tough-on-crime agenda that, ironically, impacted the same public school students (and their parents and communities) left behind by Rodriguez in 1973.

For example, a couple of years before Rodriguez, President Richard Nixon declared at a press meeting on June 17, 1971, that drug abuse in America was “public enemy number one[,]” and the crime that accompanied it was sweeping the nation. He was not alone in this belief.

His predecessor, President Lyndon B. Johnson, shared a similar sentiment when he stated before Congress on March 8, 1965, that, “[c]rime has become a malignant enemy in America's midst.” A few months later, President Johnson signed Executive Order 11236 to establish the President's Commission on Law Enforcement and Administration of Justice. The function of the Commission was to “[i]nquire into the causes of crime and delinquency, measures for their prevention, the adequacy of law enforcement and administration of justice, and the factors encouraging respect or disrespect for law ....” One major product from the Commission is the 1967 publication of The Challenge of Crime in a Free Society: A Report by the President's Commission on Law Enforcement and Administration of Justice. Chapter Three of the report addresses “Juvenile Delinquency and Youth Crime.” One suggestion from this Chapter is for the police, schools, and courts to play a bigger role in referring youth to law enforcement. In regard to the juvenile justice system in particular, the Commission recommended that “[t]o the greatest feasible extent, police departments should formulate policy guidelines for dealing with juveniles.”

In 2023, we refer to this practice as the school-to-prison pipeline. To be clear, the Rodriguez decision of 1973 was not a case about the juvenile justice system. However, removing any federal accountability for ensuring that states provide equitable and adequate funding for students educated in lower-income school districts laid the groundwork for little to no state accountability for low-quality schools that serve as dead ends and drop out factories that feed our juvenile justice and adult prison systems.

So, how did we get here? And where do we go from here? To answer those questions, this Essay identifies how and why the school-to-prison pipeline became an acceptable norm in our public discourse about law and policy, summarizes its impact on students and society, and asks lawyers and reformers to reimagine how to address the issue by giving consideration to three novel pathways to change: (1) creative settlement of school funding litigation; (2) a prison-to-solutions pipeline; and (3) a Pell grants and civil society evaluation.

[. . .]

As we reflect on the San Antonio Independent School District v. Rodriguez decision at fifty years, we must broaden the lens by which we assess the impact this decision had on policies and practices that affect public education in general, but also its direct or indirect role in the growth of a black flower in American society known as the school-to- prison pipeline. Doing so will require us to review our ideals about the role of education in a democratic society, to redefine the meaning of accountability and punishment, and to reconsider the successes and challenges of American modernity.

Lecturer at the University of Virginia School of Law and former Virginia Secretary of Education.