Abstract

Excerpted From: Jenna Wechsler, The Intersection of Race, Gender, Special Education Status, and School Discipline: A Multifaceted Approach to Closing the School-to-Prison Pipeline for the Most Vulnerable Youth, 58 New England Law Review 79 (Fall, 2023) (302 Footnotes) (Full Document)

In January 2021, a ten-year-old Black girl with documented disabilities was interrogated, handcuffed, and arrested by police in her public school--all over a non-violent dispute between classmates. While this particular incident made national news and garnered the attention of the American Civil Liberties Union (“ACLU”), excessive school discipline and arrests of Black girls and children with disabilities are routinely overlooked by the mainstream media. For some students, entrance into the public school system effectively places them on a track leading to prison. This well-researched phenomenon, commonly referred to as the school-to-prison pipeline, disproportionally affects students based on race, gender, and disability status. The most at-risk children are pushed out of schools and into the criminal justice system as incarceration is prioritized over education. This common trajectory from school to prison has been established through laws, procedures, and practices which have allowed implicit bias to affect disciplinary decisions.

Students with disabilities disproportionately suffer the negative impacts of the school-to-prison pipeline, which is particularly disturbing given the procedural protection afforded to disabled students under the Individuals with Disabilities Education Act (“IDEA”). Despite the protections provided for in the IDEA, disabled students--especially Black males--are more likely to follow the path from school to prison. Black females, on the other hand, are underrepresented in special education programs and overrepresented in school suspensions and expulsions.

This Note examines disparities in special education statuses, school disciplinary decisions, and criminal justice involvement based on race and gender. This Note argues that the IDEA has failed to protect students with disabilities from unequal and excessive school discipline and has allowed racial bias to affect decision-making procedures. This Note recognizes that: (1) a multitude of different factors have exacerbated the school-to-prison pipeline for disabled students and students of color; and (2) a multi-faceted response is necessary to stop the flow. Specific solutions are proposed at both the federal and state levels that require legislative, executive, and judicial action.

Part I of this Note further defines the school-to-prison pipeline phenomenon and the different factors that have contributed to this nationwide trend. Part II describes the impact of the school-to-prison pipeline, broken down by race, gender, and special education status. Part II also discusses legal restrictions on disciplining students with disabilities provided for in the IDEA. Part III argues that the IDEA provides inadequate protections for vulnerable students because of legislative loopholes, imprecise guidelines, and overly narrow understandings of disability. Part IV recommends specific proposals to close the school-to-prison pipeline through legislative amendments to the IDEA, executive guidelines, litigation, and educational advocacy.

[. . .]

Students of color and students with disabilities are being pushed out of public schools and into the criminal justice system at alarming rates. These vulnerable youths are being denied educational opportunities in a nation that appears to value incarceration over education. In addition, the IDEA has failed to protect disabled students from the negative effects of excessive school discipline. Black girls, in particular, are failed by a system that denies them special education services and places them on a path from school to prison.

The school-to-prison pipeline is a complex problem that requires multifaceted solutions across all levels and branches of government. Legislative, executive, and judicial action is needed to slow the school-to-prison pipeline flow for students with disabilities. Department of Education guidelines can play an important role in closing legislative loopholes that allow schools and the juvenile justice system to unfairly punish students for manifestations of their disability. Suggested amendments to the IDEA, which could significantly alter the school-to-prison trajectory for Black girls, are to: (1) include trauma as a disability category; and (2) require decision-makers to focus on the best interests of the child. Litigation is also a promising strategy for recognizing trauma as a disability to provide more students with needed services and procedural safeguards. While legislative and legal change is pursued, attorneys can work within the existing legal frameworks to protect their clients from excessive school discipline and the criminal justice system. Our nation fails vulnerable students by pushing them out of schools and into prisons which requires an “all hands-on deck” response to quell this disturbing reality.

J.D. Candidate, New England Law | Boston (2024).