Washington University Law Review Volume 93 Issue 4 2016 Students, Police, and the School-To-Prison Pipeline Jason P. Nance University of Florida Levin College of Law Follow this and additional works at: https://openscholarship.edu/law_lawreview Part of the Constitutional Law Commons, Criminal Law Commons, and the Juvenile Law Commons Recommended Citation Jason P. Nance, Students, Police, and the School-To-Prison Pipeline, 93 WASH. Available at: https://openscholarship.edu/law_lawreview/vol93/iss4/6 This Article is brought to you for free and open access by Washington University Open Scholarship.
It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact digital@wumail. STUDENTS, POLICE, AND THE SCHOOL-TO-PRISON PIPELINE JASON P. NANCE ABSTRACT Since the terrible shootings at Sandy Hook Elementary School in Newtown, Connecticut, lawmakers and school officials continue to deliberate over new laws and policies to keep students safe, including putting more police officers in schools.
Yet these decisionmakers have not given enough attention to the potential negative consequences that such laws and policies may have, such as creating a pathway from school to prison for many students. Traditionally, only educators, not law enforcement, handled certain lower-level offenses that students committed, such as fighting or making threats without using a weapon. Drawing on recent restricted data from the US Department of Education, this Article presents an original empirical analysis revealing that a police officer’s regular presence at a school is predictive of greater odds that school officials refer students to law enforcement for committing various offenses, including these lower-level offenses. This trend holds true even after controlling for: (1) state statutes that require schools to report certain incidents to law enforcement; (2) general levels of criminal activity and disorder that occur at schools; (3) neighborhood crime; and (4) other demographic variables.
The consequences of involving students in the Associate Professor of Law, University of Florida Levin College of Law; J., University of Pennsylvania Law School; Ph., Educational Administration, The Ohio State University. I would like to thank the following individuals for the helpful feedback and assistance they provided for this Article: Tamar Birckhead; Derek Black; Kevin Brown; June Carbone; Jonathan Cohen; Nancy Dowd; James Dwyer; Jamison Fargo; Barry Feld; Robert Garda, Jr.; Marsha Garrison; Michael Heise; Danielle Holley-Walker; Darren Hutchinson; E. Lea Johnston; Lyrissa Lidsky; Tom C. Lin; Amy Mashburn; Sharon Rush; Chris Slobogin; D.
Daniel Sokol; John Stinneford; Larry Winner; Robin Fretwell Wilson; Michael Allan Wolf; and Marcia Yablon-Zug. I also appreciate the helpful comments provided by faculty members during presentations of earlier versions of this work at the University of Georgia School of Law; the 2014 Law and Society Association Annual Meeting; the Central States Law Schools Association 2014 Scholarship Conference; the Southeastern Association of Law Schools 2014 Annual Conference; the 2015 Annual Meeting of the Association of American Law Schools; the 2015 Harry Krause Emerging Family Law Scholars Workshop at the University of Illinois College of Law; and the Workshop on Vulnerability and Education at Amherst College. I received excellent research assistance from Leah Henrich, Dustin Mauser-Claassen, Marla Spector, and John Van Hise. I am grateful for the summer research grant provided by the University of Florida Levin College of Law.
Finally, I would like to thank the US Department of Education for providing access to the restricted-use data for the 2009–2010 School Survey on Crime and Safety and for its permission to disseminate the results of this empirical analysis. 919 Washington University Open Scholarship 920 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 93:919 criminal justice system are severe, especially for students of color, and may negatively affect the trajectory of students’ lives. Therefore, lawmakers and school officials should consider alternative methods to create safer learning environments.
TABLE OF CONTENTS INTRODUCTION. THE RISE OF THE SCHOOL-TO-PRISON PIPELINE. Zero Tolerance Laws and Policies. Federal and State Statutory Reporting Requirements.
Students’ Limited Constitutional Protections at School. High-Stakes Testing Laws. Academic Underachievement and the Mindset of Educators. LAW ENFORCEMENT OFFICERS IN SCHOOLS.
THE IMPACT OF THESE LAWS, POLICIES, AND PRACTICES ON STUDENTS. THE EMPIRICAL STUDY. Models and Empirical Methodology. Results of the Empirical Analysis.
Limitations of the Empirical Study. DISCUSSION AND RECOMMENDATIONS. Discussion of Empirical Findings .edu/law_lawreview/vol93/iss4/6 2016] STUDENTS, POLICE, AND THE SCHOOL-TO-PRISON PIPELINE 921 Although the phrase “school-to-prison pipeline” has become “part of the national lexicon,” it has yet to enter the lexicon of our courts. It is no doubt correct that early and positive intervention by family and educators will best realign [a student’s] errant behavior and most likely lead to a productive life.
That should be the educational goal of our school system in dealing with [students]. It should be a societal goal.1 INTRODUCTION On September 18, 2007, Pleajhai Mervin, a sixteen-year-old student, dropped some birthday cake on the school cafeteria floor.2 This seemingly small incident escalated quickly when Pleajhai and a security officer stationed at the high school became involved in a scuffle after Pleajhai failed to clean up the cake to the officer’s satisfaction.3 Another fourteen- year-old student who was recording the incident also became involved in the scuffle when that student refused to hand over his camera to the officer.4 Then the fourteen-year-old student’s older sister became involved in the scuffle when she tried to intervene and help her brother.5 The police arrested all three students and booked them on suspicion of battery.6 In October of 2015, a teacher called a police officer into the classroom to handle a student who was using a cell phone against school rules.7 Other students in the classroom captured what transpired next by video.8 After the student refused to leave the classroom, the police officer violently grabbed the student by the neck, flipped the student and her desk to the floor, forcibly dragged her across the classroom, and then arrested her. Sandy City Corp., concurring) (quoting Lisa H. Thurau & Johanna Wald, Controlling Partners: When Law Enforcement Meets Discipline in Public Schools, 54 N.
Simmons, High School Scuffle Exposes a Racial Rift, L.com/2007/oct/11/local/me-palmdale11. Emma Brown, Police in Schools: Keeping Kids Safe, or Arresting Them for No Good Reason?, WASH.com/local/education/police-in- schools-keeping-kids-safe-or-arresting-them-for-no-good-reason/2015/11/08/937ddfd0-816c-11e5-9a fb-0c971f713d0c_story. See Valerie Bauerlein & Zusha Elinson, Role of School Police Officers Questioned, WALL ST. 28, 2015, 8:22 PM), http://www.com/articles/role-of-school-police-officers-questioned- Washington University Open Scholarship 922 WASHINGTON UNIVERSITY LAW REVIEW [VOL.
93:919 Involving law enforcement in disciplinary issues that educators once handled on their own is becoming an increasingly common feature of our public school system.10 The anecdotal evidence of police officers mishandling student disciplinary problems abounds. For example, police officers stationed at schools have arrested students for texting, passing gas in class, violating the school dress code, stealing two dollars from a classmate, bringing a cell phone to class, arriving late to school, or telling classmates waiting in the school lunch line that he would “get them” if they ate all of the potatoes.11 To be clear, these mishandlings are not limited only to high school and middle school students. In 2005, police arrested a five-year-old girl after she threw a temper tantrum when her teacher ended a mathematical counting exercise involving jelly beans.12 Then in 2007, police arrested six-year-old Desre’e Watson for throwing a temper tantrum in an elementary school.13 The police had to place the handcuffs around Desre’e’s biceps as they escorted her to the police station because her wrists were too small.14 1446076813; Josh Sanburn, Do Cops in Schools Do More Harm Than Good?, TIME (Oct.com/4093517/south-carolina-school-police-ben-fields/. Sandy City Corp., concurring); CIVIL RIGHTS DIV.
DEP’T OF JUSTICE, INVESTIGATION OF THE FERGUSON POLICE DEPARTMENT 37–38 (2015) [hereinafter FERGUSON INVESTIGATION] (finding that the Ferguson, Missouri, Police Department treated “routine discipline issues as criminal matters”); see also Ben Brown, Understanding and Assessing School Police Officers: A Conceptual and Methodological Comment, 34 J. See SHAKTI BELWAY, S. POVERTY LAW CTR., ACCESS DENIED: NEW ORLEANS STUDENTS AND PARENTS IDENTIFY BARRIERS TO PUBLIC EDUCATION (2010) (describing various incidents where police mishandled student disciplinary issues); FERGUSON INVESTIGATION, supra note 10, at 37–38 (describing incidents where police mishandled student disciplinary issues); Nancy A. Heitzeg, Criminalizing Education: Zero Tolerance Policies, Police in the Hallways, and the School to Prison Pipeline, in FROM EDUCATION TO INCARCERATION: DISMANTLING THE SCHOOL-TO-PRISON PIPELINE 11, 21–22 (Anthony J.
Nocella II et al. CIVIL LIBERTIES UNION, CRIMINALIZING THE CLASSROOM: THE OVER-POLICING OF NEW YORK CITY SCHOOLS 6, 14 (2007), available at http://www.org/pdfs/criminalizing_the_classroom_report. Theriot, School Resource Officers and the Criminalization of Student Behavior, 37 J. 280, 281 (2009) (describing arrests for trivial offenses); Sharif Durhams, Tosa East Student Arrested, Fined for Repeated Texting, MILWAUKEE J.com/news/ milwaukee/39711222.html; Student Arrested for ‘Passing Gas’ at Fla.
24, 2008, 9:47 PM), http://www.com/id/27898395/ns/us_news-weird_news/t/student-arrested -passing-gas-fla-school/, archived at http://perma. Tobin, Video Shows Police Handcuffing 5-Year-Old, TAMPA BAY TIMES (Apr.com/2005/04/22/Southpinellas/Video_shows_police_ha.shtml, archived at http://perma.cc/87RY-ZK9J. Bob Herbert, 6-Year-Olds Under Arrest, N.co m/2007/04/09/opinion/09herbert.edu/law_lawreview/vol93/iss4/6 2016] STUDENTS, POLICE, AND THE SCHOOL-TO-PRISON PIPELINE 923 Students’ increased involvement with the justice system is part of a growing concern that many refer to as the “school-to-prison pipeline.”15 The term “school-to-prison pipeline” (“Pipeline”) connotes the intersection of the K–12 public education system and law enforcement, and the trend of referring students directly to law enforcement for committing offenses at school or creating conditions that increase the probability of students eventually becoming incarcerated, such as suspending or expelling them.16 Although some may believe that arresting or incarcerating students for violating school rules may “scare them straight,” involving youth in the justice system normally does not achieve the desired reformative effect.17 Rather, the negative consequences that often occur instead are quite severe.18 Empirical studies demonstrate that 15., Christi Parsons, Obama Wants to Stop ‘School-to-Prison Pipeline’ for Minorities, L. 11, 2014, 3:00 AM), http://www.com/nation/politics/politicsnow/la-pn- obama-stop-school-prison-pipeline-20140210-story.html (discussing President Obama’s “plans to launch an initiative aimed at improving the lives of young black and Latino men” by stopping the school-to-prison pipeline); Press Release, Dick Durbin, U.
Senator, Durbin Holds Hearing on Ending the School-to-Prison Pipeline (Dec. 12, 2012), archived at http://perma.cc/CB6V-3TXH (explaining Senator Durbin’s position in favor of “reforms to better discipline our students without forcing them out of the classroom and into a courtroom”); Video Highlights: ABA Seeks Solutions for School-to- Prison Pipeline Problem, ABA (Feb. 11, 2014, 3:15 PM), http://www.org/news/ abanews/aba-news-archives/2014/02/video_highlightsab. Sandy City Corp., concurring) (quoting Jason P.
Nance, School Surveillance and the Fourth Amendment, 2014 WIS. DEP’T OF JUSTICE & U. DEP’T OF EDUC., DEAR COLLEAGUE LETTER ON THE NONDISCRIMINATORY ADMINISTRATION OF SCHOOL DISCIPLINE 4 (2014), available at http://www2.gov/about/offices/list/ocr/letters/colleague-201401-title-vi. Conditions increasing the probability that a student will be arrested are broad and might include depriving students of needed resources to enhance their educational opportunities.
KIM ET AL., THE SCHOOL-TO-PRISON PIPELINE: STRUCTURING LEGAL REFORM 1 (2010); see also Jason P. Nance, Dismantling the School-to-Prison Pipeline: Tools for Change, 48 ARIZ. (forthcoming 2016), available at http://papers.com/sol3/papers.cfm?abstract_id=2 671447 [hereinafter Nance, Dismantling the School-to-Prison Pipeline]. See generally JAMES O.
GAVIN, SCARED STRAIGHT: THE PANACEA PHENOMENON REVISITED (1999); JAMES O. FINCKENAUER, SCARED STRAIGHT! AND THE PANACEA PHENOMENON (1982) (debunking the myth that imposing severe consequences can by itself deter criminal behavior); see also ANTHONY PETROSINO ET AL., THE CAMPBELL COLLABORATION, FORMAL SYSTEM PROCESSING OF JUVENILES: EFFECTS ON DELINQUENCY 6 (2010) (suggesting that incarcerating a youth does not effectively deter criminal behavior; rather, it increases future involvement in the justice system); Anne M. Hobbs et al., Assessing Youth Early in the Juvenile Justice System, 3 J. 80, 81 (2013) (“[O]fficial processing of a juvenile law violation may be the least effective means of rehabilitating juvenile offenders.
See DON BEZRUKI ET AL. LEGISLATIVE AUDIT BUREAU, REP. 99-13, SECURE JUVENILE DETENTION: AN EVALUATION 4 (1999) (determining that detaining youth does not reduce the likelihood of recidivism); BARRY HOLMAN & JASON ZIEDENBERG, JUSTICE POLICY INST., THE DANGERS OF DETENTION: THE IMPACT OF INCARCERATING YOUTH IN DETENTION AND OTHER SECURE FACILITIES 4 (2006) (showing that incarcerating youth can lead to increased future involvement in the justice system). Washington University Open Scholarship 924 WASHINGTON UNIVERSITY LAW REVIEW [VOL.
93:919 arresting a student substantially reduces the odds that the student will graduate from high school, especially if that student appears in court.
