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Excerpted from: Shameka Stanford and Bahiyyah Muhammad, The Confluence of Language and Learning Disorders and the School-to-prison Pipeline among Minority Students of Color: A Critical Race Theory, 26 American University Journal of Gender, Social Policy and the Law 691 (2018) (191 Footnotes) (Full Document)


ShamekaStanford 02Exposure to law enforcement and the juvenile justice system is reported to have a devastating impact on a student's mental health, as well as increasing the risk of criminal recidivism to more serious crimes. According to the Free Thought Project, “approximately 260,000 students were referred to law enforcement during the 2011 to 2012 school year. Within that same year, approximately 92,000 students were arrested on school property.” As a result, the recidivism rates for juveniles, aged fifteen to twenty, released from prison is significantly higher than any other age group. For example, 76% of juveniles under the age of twenty-five who were released from prison were rearrested within three years. Additionally, 80% of African Americans were rearrested within five years.

Bahiyyah MuhammadThis percentage of African Americans recidivating, represents an extreme disparity in the rates of incarceration between racial groups. Although African Americans make up a mere 13% of the U.S population, they comprise over 40% of young adult inmates in jails and prisons. To date, one in twenty-three white males are sentenced to jail in their lifetime as compared to one in four black males. These numbers are likely to be most prevalent amongst minority male students from low socio-economic backgrounds, whose school districts have less resources. To this extent, disproportionate mass incarceration continues to produce long-term detrimental effects such as: 1) reinforcement of violent behavior and attitudes; 2) limited education; 3) exacerbated mental health issues and learning disabilities; and 4) increased future involvement in the criminal justice system. This disparate treatment has persisted for over five decades.

Since the judgment of Brown v. Board of Education and, with it, the desegregation of schools, schools nationwide have placed African American students in special education programs at an alarmingly disproportionate rate. At this time, African American students represent 20.2% of the total population of students receiving special education in the United States. This representation becomes more prevalent when the student is a minority who exhibits any level of a language or learning disorder. When language and learning disorders are misdiagnosed, undiagnosed, or improper services are provided, academic and vocational impacts may persist throughout the child's life into adulthood. Affecting literacy; behavioral, social and pragmatic decision-making; and expressive and receptive language skills. As a result, students in special education--especially those who are African American and living with an undiagnosed and untreated language and learning disorder--have a higher school drop-out rate and enter society with significantly higher incarceration rates than their peers of other races.

Many factors contribute to the prevalence of young minorities within the special education system who are trapped in the criminal justice system. One particular factor is the presence of symbolic and institutional racism. In this context, symbolic and institutional racism can be argued as being represented in the challenges African American students in special education experience when they are oppressed by a system of power secondary to their race, ethnicity, socio-economic status, and cognitive and educational abilities. The overrepresentation of African American students in special education within U.S. school systems and in the U.S. criminal justice system invokes questions about civil rights violations secondary to its plausible correlation to the “school-to-prison pipeline” phenomenon.

Part I of this Article will outline the presence and impact of language and learning disorders on African American students.

Part II will detail the development and use of zero-tolerance policies in schools and analyze these policies.

Part III will detail the disproportionate and subjectively harsh disciplinary laws implemented in low socioeconomic status (“low-SES”) Title I schools within the United States, and how these laws may be fueled by symbolic and institutional racism.

Part IV will assess the school-to-prison pipeline and its correlation to special education systems for minority students with language and learning disorders.

Part V will examine the correlation between minority students of color with language and learning disorders as well as the school-to-prison pipeline from a critical race theory perspective.

Part VI will cover the disproportionate impact of corporal punishment on African American students in the United States. Finally, Part VII will discuss recommendations for reducing disproportionately harsh disciplinary actions in low-SES Title I schools. This section will also include a discussion of utilizing federal and state laws such as the federal Equal Protection Clause and Title VI of the Civil Rights Act of 1964 to assist in reducing the school-to-prison pipeline epidemic for minorities with language and learning disorders.
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Conclusion: Recommendations for Reduction of Harsh Policy Disproportionality

Zero tolerance policies enforced in schools across forty-one states encourage subjective enforcement despite their objective appearance. There are many concerns about the legality of the subjectivity of the zero tolerance policies in schools such as:

1. The lack of efficient due process procedures for students being charged with major infractions for minor incidences.

2. Harsh disciplinary action for harmless, general conduct.

Further, these zero tolerance policies negatively impact students with disabilities and disregard students' right to an education that meets their unique learning needs under IDEA by depriving students of much-needed services and punishing students for behaviors that are manifestations of their disabilities. Students of color, particularly those with language and learning disabilities, are increasingly subjected to legal consequences through the inequalities posed by zero tolerance policies. Zero tolerance polices negatively impact the constitutional rights of minority students with language and learning disorders. For that reason, zero tolerance policies, referrals to juvenile systems, and placement in special education classes secondary to behavior could be deemed unconstitutional under the Fourteenth Amendment and could violate IDEA.

Due to the statutory vagueness of zero tolerance policies, creating distinctions and consistent processes for disciplinary violations, definitions, and actions at the state and local school district levels would be beneficial. Current zero-tolerance policies do not clearly distinguish between students who are intentionally being disruptive, disrespectful, or subordinate, and those who are experiencing cognitive, behavioral, and communication disorders. The majority of referrals to place students in special education classrooms; exclude them from classes; send them to the juvenile justice system; or punish them under perceived violations of school and district policies, are subjectively enforced by teachers and school administrators without distinguishing between intention and disorder. We recommend that school districts revise disciplinary policies and procedures to provide more objective approaches for suspensions, expulsions, and referrals to special education classes and the juvenile justice system.

Several factors such as systemic biases, disproportionate African American student representation in special education, and subjective zero-tolerance policies play a role in the racial and ethnic disproportionality and disparities in school disciplining. These policies have transformed schools into pipelines to the juvenile justice system. The increase in criminal charges filed against juveniles for in-school behaviors is reported as one of the most detrimental results of the zero tolerance policies. Abandoning zero tolerance policies can assist the current disproportional impact on students of color and students with disabilities and the school-to-prison pipeline. Instead of applying such strict consequences, school districts should address the root of students' behaviors by providing services, particularly for students with disabilities and African American students. Districts should not involve police or resource officers when the infraction from students with disabilities are minor or nonviolent as it goes against the rights discussed in IDEIA, and disregards due process.

Even when a student with disabilities is expelled from school, the school district is mandated to continue to provide special education services to the student. Although this is expected, the continuous provision of special education services are not consistently practiced once the student receives an infraction from school resource officers, who have referred the student to the juvenile justice system. Referrals to the juvenile justice system based on zero tolerance policies create a funnel into the criminal justice system for students. There should be no referral to special education or the criminal justice system before due diligence has been done to address the areas of concern and behaviors with therapeutic intervention. Schools should work on eliminating harsh disciplinary policies, enforcing response to intervention within the general education classroom, and creating restorative justice programs that focus on building relationships and understanding among students, administrators, and teachers. Lastly, but equally as important, cultural competence training to assist staff in understanding minority students with disabilities should be increased and consistent within school systems.

In the book titled Homeroom Security, Kupchik examines discipline in American schools and argues that the tough on crime rhetoric utilized in the criminal justice system should not be incorporated as a method to addressing untreated behavioral, language and learning disorders that affect African American students, thereby tracking them into juvenile detention facilities and perpetuating the school-to-prison pipeline silent epidemic.

In conclusion, zero tolerance policies are counterproductive, and the use of hyper-security and intolerance has dire effects on African American school children. More specifically, it has significant negative effects on African American students with language and learning disorders. Zero tolerance policies, and a lack of understanding of the aforementioned reasons, assist in making the journey from the schools to the prisons more likely for minority students with language and learning disorders enrolled in low-SES Title I school districts.

Dr. Shameka Stanford is an Assistant Professor in the Communication Sciences and Disorders department at Howard University. She is also a nationally and state clinically certified Speech-Language Pathologist.

Dr. Bahiyyah Muhammad, is an Assistant Professor in the Criminology and Sociology Department at Howard Universityt