Policing School Discipline

The title of this post is the title of a recently published article by my colleague, Professor Catherine Kim (University of North Carolina), who is also the co-author of the excellent book, The School-to-Prison Pipeline: Structuring Legal Reform, a comprehensive study of the relationship between American law and the disturbing trend in which large numbers of at-risk youth — mainly children of color — are pushed out of the classroom and into the justice system.

The article, which appears in the Brooklyn Law Review, opens with this introduction:

Notwithstanding the frequent admonishment that “students [do not] shed their constitutional rights . . . at the schoolhouse gate,” courts routinely defer to school officials in cases involving the investigation and punishment of youth in schools. Consequently, youth accused of school misconduct are not entitled to the same procedural protections to which they would be entitled outside the school context: school officials may search their belongings or persons without a warrant or probable cause, and officials may question them without first providing Miranda warnings.  Courts and scholars alike defend such restrictions on students’ constitutional rights on the ground that school discipline, unlike law enforcement, serves the educational interests of youth. Under this view, the educational value of discipline and consequent alignment of interests between official and student render the constitutional protections guaranteed outside of the school context inapposite in schools.

Recent observations of a “school-to-prison pipeline” resulting in the increased criminalization of student misbehavior, however, cast doubt on this characterization of school discipline. Today, police officers routinely patrol public school hallways on a full-time basis as “school resource officers”; and school officials refer a growing number of youth to the juvenile and criminal justice systems for school-based misconduct. These developments call for a critical reassessment of the extent to which contemporary school discipline practices advance the educational goals that historically justified their insulation from judicial scrutiny.

This article evaluates empirical evidence on contemporary discipline practices and finds that, in a growing number of jurisdictions that rely on law enforcement to maintain order in schools, it can no longer be said that the investigation and punishment of school misconduct serves the accused student’s educational interests, or even the interests of the larger student body.

These changes in the operation of school discipline parallel the changes to the juvenile justice system addressed in the landmark case of In re Gault. Traditionally, youth in juvenile court were not entitled to the procedural protections guaranteed to adults in criminal court, on the ground that juvenile courts, unlike criminal courts, were assumed to be nonadversarial institutions designed to further the best interests of the youth; young people would receive the benevolent protection of court officials in exchange for giving up their procedural rights. Accumulating evidence of juvenile courts’ failure to achieve those beneficent goals, however, led the U.S. Supreme Court in Gault to reconsider prior doctrine and extend to youth at least some of the procedural rights formerly limited to adults in criminal court. Courts today likewise should evaluate evidence of school discipline’s achievement of its beneficent goals, and modify accordingly the procedural protections available to youth in public schools.

Part I explores the development of the educational theory of school discipline in legal doctrine, focusing on the role that social science has played to restrict the procedural rights of students. The Supreme Court has reasoned that school discipline-in stark contrast to law enforcement-serves the educational interests of the student who is investigated and punished; for this reason, constitutional rights that would be available to youth outside of school are not available to them in the context of school discipline. In the early foundational cases establishing these restrictions, members of the Court relied on personal intuitions about school discipline, even when those intuitions conflicted with empirical evidence properly presented before them. More recent cases, however, suggest an increased willingness to scrutinize the impact of school discipline practices in determining whether the deference traditionally afforded to school officials remains warranted.

Part II analyzes empirical findings on contemporary school discipline practices and their pedagogical impact, focusing on school-based arrests and other forms of referral to law enforcement. Analyzing a number of recent empirical studies, this part finds that schools increasingly rely on law enforcement to maintain order, although the extent to which they do varies. It then explores scholarship from related disciplines in education, sociology, and criminology to conclude that the use of law enforcement in schools has a negative impact on educational outcomes, not only for the investigated youth, but also for the larger student body. These findings suggest that the investigation and punishment of students in at least some jurisdictions no longer serves the pedagogical interests that traditionally justified exempting students from procedural protections.

Part III sets forth a framework for courts and nonjudicial actors to take such social science evidence into account. It proposes that courts engage in a factual assessment of school discipline practices to determine whether the traditional rationale for denying youth in schools constitutional procedural rights remains warranted. Given the significant variance across jurisdictions in school discipline practices, the analysis employed should be location-specific. The presumption that school discipline serves pedagogical goals would be preserved, but could be rebutted with evidence showing that disciplinary practices in the particular school or district at issue do not further the educational interests of accused youths. Where a court finds that school discipline operates primarily to further law enforcement goals rather than pedagogical goals, investigations of student misconduct should be presumed to be adversarial and thus subject to the full scope of constitutional protections that would be available to youth outside the school context. By contrast, where school discipline practices are found to adhere to the traditional model of discipline in furtherance of pedagogical goals, doctrinal restrictions on students’ constitutional rights would remain in place. Part III then considers the role of nonjudicial actors, arguing that those who make the substantive determination as to whether certain forms of conduct should be criminalized in the first instance will play a critical part in any reform effort.

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About Tamar Birckhead

School of Law
This entry was posted in Analysis, Case Law, Juveniles, Legal Scholarship, School to Prison Pipeline, Social science, U.S. Supreme Court. Bookmark the permalink.

One Response to Policing School Discipline

  1. Mike says:

    Can a school resource officer in NC make a disorderly conduct at school arrest without witnessing it?