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Excerpted From: Jyoti Nanda, The Construction and Criminalization of Disability in School Incarceration, 9 Columbia Journal of Race and Law 265 (2019) (191 Footnotes) (Full Document)

JyotiNanda 01Though the overrepresentation of Black and Latinx youth with disabilities in the juvenile justice system has been often noted, disability scholarship in this area has focused on the limits of special education laws and the overrepresentation or underrepresentation of children of color in certain cognizable disability categories under the Individuals with Disabilities Education Act (IDEA). Scholars have given some attention to the role played by school atmosphere and racial and cultural bias on the part of teachers and administrators in the process of identifying a student with a disability. However, given that disability attribution is discretionary, it is oftentimes difficult to study or even pinpoint when the process of attributing a disability to a student first occurs. Meanwhile, a robust body of literature on zero-tolerance policies in schools part of what has been dubbed the "School-to-Prison Pipeline"--has failed to squarely address how the atmosphere created by these policies negatively impacts students with disabilities directly and indirectly. Specifically, fully unpacking how and why children of color with disabilities are overrepresented in the juvenile justice system is many times relegated to a footnote, largely because the issue is unduly complicated. This Article seeks to bridge this gap by examining how, for students of color, the construction of disability (if it exists) may be a criminalized condition "remedied" with punishment and segregated classrooms, eventually leading to the juvenile justice system, in which children with disabilities are grossly overrepresented. Simultaneously, for White students in wealthy schools, disabilities or perceived disabilities are viewed as medical conditions and treated with care and resources.

This Article maps how the process of identifying a student with a disability happens in hyper-criminalized school settings, both within the confines of the IDEA and outside of it. First, it describes the impact of the heavily surveilled school environment, including the presence of school resource officers, and how the school site creates tensions that cause misperceptions of student behavior as nonnormative, which is often indicative of a disability. This Article argues that the school site itself contributes to the construction and criminalization of disability. Second, this Article illustrates how the attribution of disability is a product of the subjectivity built into the IDEA, hyper-disciplined school environments, and racial and cultural biases of teachers and administrators regarding the way Black and Latinx students should act and perform. It suggests that the combination of these factors causes the over, under, and misdiagnosis of Black and Latinx children with a disability. This is particularly manifested in the assignment of disproportionate numbers of Black and Latinx students to one of the most stigmatized disability categories under the IDEA: "emotional disturbance." The result is Black and Latinx students receiving an education in segregated classrooms with heavy discipline ostensibly in response to deviant behavior associated with the diagnosis. This gives rise to a form of racial stratification and ultimately, criminalization of students labelled as emotionally disturbed.

This Article describes the nature of that web and explains how it leads to the criminalization of some children, largely Black and Latinx, through the construct of disability. The starting point is the premise that both disability and race produce marginal identities and thus a student of color with a disability is at a higher risk of discrimination and negative outcomes due to the intersectional nature of these two identities. An important line of the argument is the claim that, for students of color, disability is one of the mechanisms through which they are criminalized. This helps explain why students of color with disabilities are overrepresented in the juvenile justice system.

Part of the contribution this Article hopes to make is to broaden the concept of the School-to-Prison Pipeline (the Pipeline), and to rethink the metaphor of the Pipeline altogether. Scholars have examined in depth the racial and gendered dimensions of the Pipeline, the negative impacts of heavy surveillance, and the effect of the discretionary discipline policies the Pipeline engenders. They have, however, paid insufficient attention to the role of schools in the attribution of disability outside of a focus on high rates of discipline and failure to implement the rights and protections in disability law. Moreover, scholars who address disability laws affecting youth have carefully unpacked the ways in which disability laws do not effectively protect children of color with disabilities--a failure often due to the way children are diagnosed. In this disability literature, however, criminal justice implications are given minimal treatment. The literature also does not adequately delve into the role that racial bias and language bias may play in constructing disability for different communities. Attorneys have become attune to the role that poverty may play in creating trauma that may rise to the level of a cognizable disability, but these analyses do not sufficiently explore the school's role in constructing disability or in contributing to the criminalization of disability, as this Article suggests they should. This Article thus intervenes into both the disability rights literature and the juvenile justice literature, subjecting both to an intersectional analysis.

Part II provides a brief overview of the disability legal regime that covers K-12 students. Special education laws were enacted in the 1970's to curb discretion and ensure inclusion of all students as part of an equal and fair education; sadly, the laws' purposes have not yet been fully realized. Inequality and discretionary problems within the law persist today and contribute to the disability criminalization problem this Article seeks to expose.

Part III describes a frequently overlooked factor in the construction and criminalization of disabilities: the prisonlike environment in some schools and how this environment itself contributes to the racialized construction of disabilities.

In Parts IV and V, this Article articulates with some specificity how law, extralegal factors, and bias facilitate racialized constructions of disability. Central to this analysis is the claim that the construction of disability is not simply a function of individual teachers making individual choices about individual students--it is a structural problem. This overarching analysis begins in Part IV by examining the nuanced process through which teachers and administrators mark students as having a cognizable disability-- the attribution process itself. The discussion reveals the various extralegal mechanisms at play. Specifically, it argues that teachers utilize subjectivity to first identify a student by relying on their racial and cultural understandings of the student. Accordingly, these assessments are created through implicit and explicit racialized biases that are collectively expressed and legitimated.

Part V interrogates the disproportionately high number of Black and Latinx students in certain cognizable disability categories (e.g., emotional disturbance) and disproportionately low numbers in other categories (e.g., autism). It suggests that these differing distributions reflect a double bias: first, a bias toward certain disability categories that are more stigmatized and ranked as more problematic and second, a bias against children of color. Part V explicates how the over, under, and misdiagnosis of a child's disability results in both racial disparity and a form of racial stratification--an actual ranking of race intertwined with disabilities. Racial stratification manifests in many forms. For Black and Latinx students disproportionately placed in certain disability categories and in an environment with heavy police surveillance and zero-tolerance discipline policies, the outcomes can be dire: incarceration and ultimately criminalization of their (possible) disability.

Ultimately, this Article returns to the initial insight regarding how race functions to ascribe and criminalize disability by demonstrating that for White students and students in high-performing schools, disability is often considered a medical condition that is treated and provided with resources, whereas for Black and Latinx students in hyper-surveilled schools, a disability may be a criminalized condition remedied with punishment and in the worst case, a more obvious and likely target for law enforcement and juvenile incarceration. In order to effectively address the disproportionate numbers of children with disabilities who are incarcerated, this Article concludes with the notion that we must fully understand the web that exists in the construction and criminalization of disabilities for Black and Latinx children and the role that schools and school actors play in this process.

[. . .]

The discrepancy between well-funded and grossly underfunded schools raises larger policy questions that are outside the scope of this Article but are worth raising; the main red flag this Article raises is the way disabilities are subjectively determined in grossly unequal schools and its impact on Black and Latinx communities. We must fully understand this web that exists in the construction and criminalization of disabilities for Black and Latinx children and the role that schools play in this process in order to effectively address (via laws, policies, and practices) and ultimately end the disproportionate number of children with disabilities who are incarcerated. In doing so, we would move closer to a human-rights-based model of justice where the child's individual needs are front and center.

Binder Clinical Teaching Fellow and Youth and Justice Clinic Faculty Founder, UCLA School of Law.

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