Excerpted From: Tonja Jacobi and Riley Clafton, The Law of Disposable Children: Discipline In Schools, 2023 University of Illinois Law Review 1123 (440 Footnotes) (Full Document)


JacobClaftonIn 2021, in what is often colloquially referred to as "the cheerleader case," the Supreme Court upheld the rights of schoolchildren to exercise their free speech, even when using vulgarities to express their views over matters as minor and mundane as who is chosen for the cheer squad. The Court was roundly lauded for providing important protections to schoolchildren. Yet, this Article shows that the Supreme Court has in fact grossly neglected its duties to protect schoolchildren when it comes to what matters most. It crafted a standard for the searches of schoolchildren that grants school administrators, staff, and school resource officers nearly unfettered discretion over students' bodies and effects, it has never addressed the constitutional limits on seizures of schoolchildren by such school personnel, and it has devised only the most minimal constraints on other disciplinary actions, such as expulsions. Schools and lower courts have exploited that lack of oversight to conduct and permit, respectively, disciplinary practices that are highly intrusive and discriminatory--actions that can be extremely destructive to children's educations and future life options. Notably, this lack of oversight has permitted school systems in some jurisdictions to exclude students not only from individual schools but from the entire public school system for up to two years, through disciplinary procedures that fail to meet even basic requirements of due process. Experts we engaged from the field say that students who are out of school for even a short time--let alone such a long time--are much more likely to engage in criminal conduct and thus be drawn into the juvenile justice system, and that children can never recover from such long-term disruptions to their schooling . Multiple experts we interviewed independently referred to the entire system as treating some children as disposable.

Beyond protecting their most flippant expressions of off-campus speech, the Supreme Court has failed students. In contrast to its more robust First Amendment protections, the Court has issued very few Fourth and Fifth Amendment rulings to regulate the treatment of schoolchildren by the state, and to the extent that it has regulated schools in these areas, it has focused on searches and interrogations. However, most experts in the field agree that school searches and interrogations are only a very narrow part of the problem and that it is the largely unregulated field of school discipline that permits children to be treated as disposable by the law and the state. It is disciplinary proceedings that constitute the primary route by which schoolchildren's rights are significantly intruded upon. Discipline procedures include detention, suspension, expulsion, and arrest, as well as workarounds that avoid school accountability for formal disciplinary action. The effectively unregulated exercise of these powers leads to the deterioration of children's privacy rights, hampers their access to education, and fosters the " school -to-prison-pipeline."

With such minimal consideration of these issues, looking to the Supreme Court tells us little about the real-world extent of the rights of schoolchildren, how school administrators interpret their duties to respect those rights, and the role of lower courts in ensuring, or failing to ensure, the protection of those rights. Here, we detail how the law relating to school students operates on the ground, and how children are treated as disposable by some schools and school authorities, by examining the issue at three levels. First, we describe the very minimal jurisprudence developed by the Supreme Court in regard to the Fourth and Fifth Amendment rights of schoolchildren, as well as the minimal and highly permissive jurisprudence that has developed around discipline more directly. Second, having shown the limitations of the Supreme Court's jurisprudence, we then look at how the doctrinal freedom such a lack of oversight provides has translated into highly deferential regulatory systems that allow states to grant enormous discretion to the very school personnel that the rules are meant to constrain. Taking the state of Illinois as a case study, we see that the resulting permissive regulatory system not only allows schools to craft their own rules, it also affirmatively gives schools structural incentives to craft rules that are vague and highly deferential to school administrators. Illinois is just one state, but we show that it is representative of a problem of national scope. Third, to examine how state actions against schoolchildren--the vast majority of which never receive any judicial review whatsoever--are actually conducted in practice, we draw on interviews conducted with experts working on issues relating to school students' lives and educations in Chicago and in Illinois more broadly. These experts include attorneys representing students, disability advocates, advocates at various charitable organizations, deans of schools, school social workers, school administrators, probation officers in the juvenile justice system, juvenile court judges, post- incarceration reintegration officers, and others.

What emerges from these interviews is a picture of a system that not only fails many students, but that permits schools to actively harm some students, discriminating among them, targeting them for exclusion from school, and preventing their reentry to school for fear of the stigma that they will bring. It also shows that other children are treated very differently, based on factors such as race, disability, homelessness, wealth, and community characteristics. Our experts relate stories of principals and other school administrators explicitly stating that they do not want certain children enrolled in their schools because of the stigma they see as associated with those children. But we also show that interventions and support for students can make an enormous difference, be it representation by attorneys or training and mentoring programs for students, teachers, administrators, and law enforcement officers dealing with students. Unfortunately, the former tends to dominate the latter, due to a lack of resources being devoted to interventions, even when they would be ultimately cost-saving in addition to increasing each child's opportunity as enabled through education.

This is an issue that arises daily in America's schools . The most recent data available reflects that in the United States, more than 2,500,000 students were suspended in the 2017-2018 academic year, and more than 100,000 were expelled. These numbers are only estimates, and the actual numbers are almost certainly much higher, as many suspensions of less than a week are imposed informally and never recorded. Moreover, expulsion data does not reflect "push outs"--the processes in which students are successfully pressured by the school to transfer to a new school, without the school having to formally report the school's action as an expulsion. These "disciplinary interventions negatively impact student achievement and increase both students' risk of dropping out and their likelihood of future involvement with the criminal justice system." Compounding the issue, these disciplinary measures are almost entirely within the discretion of the individual schools and are utilized in a discriminatory fashion. Studies show, for example, that "black students in K-12 schools are 3.8 times as likely to be suspended, and twice as likely to be expelled, as white students. Similarly, students with disabilities are more than twice as likely to receive out-of- school suspensions as students without disabilities." Yet, the Supreme Court has barely touched on the constitutionality of any of this state conduct against the most vulnerable.

These numbers only begin to hint at the unequal and often illegal way that some students are treated. Our experts relate stories of students being criminally prosecuted for snowball fights, students being targeted by teachers because they smell due to their poor living conditions, and students being left with so few schooling options that they remain in prison after they have served their sentences. Our experts describe interventions they have personally undertaken to combat racial and other forms of discrimination, to fight illegal actions taken by schools to prevent students from enrolling, to represent students in disciplinary proceedings that would otherwise surely have led to their expulsion, and to help them overcome the trauma that leads to a cycle of behavioral problems central to the school -to-prison pipeline.

Part II proceeds by addressing the very limited Supreme Court precedent on the recourse available to students deprived of their education by a school's disciplinary practices. Part III uses the case study of Illinois and the state's approach to expulsions and suspensions to illustrate that state legislatures' responses have been equally unsatisfactory. As we discuss, Illinois is representative of the national symptoms experienced as a result of the Court's abdication of protection of the most vulnerable students. Part IV discusses the entrenched nature of these exclusionary practices, drawing on interviews with experts and showing that there are manifold problems with school discipline : the lack of regulation by the Supreme Court, the school -to-prison pipeline, strikingly unequal treatment of students, and the dramatic harm that can be done to children's lives and educations by school administrators with very little court oversight. It also shows that reforms to reduce exclusionary practices can lead to many unintended consequences, including push outs and other detrimental trends.

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Explaining why he devotes himself to working with children coming out of the juvenile detention system, Reverend Kelly said: "[i]t's the forgotten, discarded, disposable people. That's so often who you find in jail--the forgotten." Francisco Arenas made a similar observation, commenting that many schools treat children as "disposable." The situation is so dire that research has shown that, in some cases, it is actually better for incarcerated students to remain incarcerated in the juvenile system and attend Nancy B. Jefferson than to be released from prison. This is in part because many regular schools, seeking to resist enrolling these previously incarcerated children, refuse to recognize the credits earned by incarcerated students, making it impossible for them to catch up and graduate. Additionally, schools often lack the resources needed to help the students. Astoundingly, there are children in detention who are labeled "release upon request," who remain in detention beyond their required sentence because there is no secure environment for them to go to. There are often services, such as medical care, mental care, housing, food, clinical services, and education services which the juvenile justice system provides to them that they do not receive outside of detention. Unsurprisingly, research shows that detention increases students' chances of not graduating, even when controlling for other factors; but perversely, once incarcerated, students may be more likely to graduate if kept incarcerated .

There is perhaps no better example of the treatment of some children as disposable as this: that children are simply left in prison after their sentence is served, because they have nowhere to go and the state makes no accommodation for them, or that they may even be better off staying in prison, because schools are so determined to exclude them. This treatment of some children as disposable is a failing by society, and it is also specifically a failing of the Supreme Court to in any way regulate the disciplinary system in the nation's schools that makes this kind of treatment possible.

This case study shows that schools often ignore their responsibilities to children with special needs and children who are traumatized--be it by the system itself or by their individual circumstances. Schools often unlawfully discriminate against some students based on race, poverty, disability, homelessness, and other status factors. Many schools fail to follow even the minimal due process that is required by the courts. Solving some of these problems requires legislative action, which requires community buy-in; but these problems also demand judicial action, to provide an enforcement mechanism to require schools to treat children fairly and respect their basic constitutional rights or value. Some more privileged schoolchildren get that respect, so much so that teachers are afraid to enforce the rules against them out of fear of litigation. But many students do not get even basic respect of their rights, and some are treated in ways that are simply shocking: excluded from the entire school system for up to two years, arrested and handcuffed at school to "set an example," and left in prison beyond their sentences, just to get a basic education and social services. The law as it currently stands allows these children to be treated as disposable, and that is anathema to the claimed values of our society and our constitutional system.

Tonja Jacobi, Professor of Law, Northwestern University Pritzker School of Law. This email address is being protected from spambots. You need JavaScript enabled to view it..

Riley Clafton, Law Clerk for the Honorable Richard C. Tallman of the United States Court of Appeals for the Ninth Circuit.