By Olivia C. Jerjian, ACLR Featured Online Contributor

“In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunities of an education. Such an opportunity, where the state has undertaken to provide it, is a right that must be made available on equal terms.”

- Chief Justice Earl Warren, Brown v. Board of Education1 (1954)

Earlier this year, a sixth-grader in Louisiana was arrested in class and charged with “interference with an educational facility” and battery.2 He spent six days in a juvenile detention facility before seeing a judge. The reason for his arrest? Throwing Skittles at other students on a school bus. Similarly, a police officer in Virginia filed a disorderly conduct charge in juvenile court against an autistic sixth-grader for kicking a trash can.3 Unfortunately, these types of cases have become increasingly common over the past two decades. The disciplinary system in U.S. schools has drastically changed since the 1980s, becoming more rigid and applying severe punishments broadly. Police officers are arresting more and more school children for crimes that previously may have resulted only in a visit to the principal’s office or after-school detention. For example, in 2010, the police in Texas gave close to 300,000 “Class C misdemeanor” tickets to children as young as six for offenses in and out of school, which result in fines, community service and even prison time.

Student disciplinary systems began evolving in the 1980s due, in great part, to the increasing rates of juvenile arrests for violence and drugs.4 Aligned with the “tough on crime” trends of the 1990s, Congress passed the Gun Free Schools Act of 19945 (“GFSA”) and the Violent Crime Control and Law Enforcement Act of 1994,6 with the intention of making schools safer. Under the GFSA, states had to pass a law mandating all local school districts expel students who brought a weapon to school to qualify for federal education funds.7 Zero tolerance policies drastically multiplied after the Columbine High School massacre in 1999 and began criminalizing misconduct less serious than in-school weapons possession.8 Federal and state governments increased funding for additional security measures, such as school-based law enforcement officers, metal detectors,9 and surveillance cameras.10 In less than a decade, the number of public high schools with full-time security guards and law enforcement officers increased by ten percent.11 The difference between the manner in which police officers and educational staff handle misconduct makes this consideration especially relevant. Officers, such as security guards, can issue a ticket or arrest students for violations. Tickets can sometimes lead to probation or a community service sentence.12 If a student fails to appear in court based on a summons issued in school, that student may be subject to fines or jail time.13

Zero tolerance policies have, in essence, criminalized minor student conduct violations—as minor as throwing Skittles in a school bus—culminating in suspension, expulsion, and, eventually, juvenile imprisonment. During the 2011-2012 academic year alone, schools reported 260,000 students to law enforcement, and 92,000 were subject to school-related arrests.14 Over two million students were suspended in 2009-10, representing one of every nine U.S. students.15 Students who are suspended or expelled have a greater likelihood of dropping out and finding themselves ushered into the juvenile justice system, pumped into the “school-to-prison pipeline.”

One of the many disturbing consequences of these zero tolerance policies is the disproportionate effect they have on students of color, disabled youth, and students from low-income families. Schools suspend and expel black and Latino students at higher rates than their white counterparts. Black students are nearly four times more likely to be suspended or expelled than their white peers,16 and Latino boys are one and a half times as likely.17 Moreover, students at schools with a large minority population are more likely to be referred to law enforcement.18 The fact that many minority students attend public schools, as opposed to private institutions and home-schooling, contributes to the discriminatory application of zero tolerance policies. For example, a student attending a private school would have never been placed in juvenile detention for throwing Skittles on the bus.

Zero tolerance policies also apply unevenly to students with disabilities, as they are twice as likely to be suspended or expelled as students without a disability.19 Punishing or arresting children with disabilities for misconduct, such as disrupting the classroom or throwing a tantrum, often violates the Americans with Disabilities Act (“ADA”)20 and the Individuals with Disabilities Education Act (“IDEA”).21 According to the Southern Poverty Law Center, as much as eighty-five percent of children currently in the juvenile justice system have some form of educational disability.22

The irony, however, lies in the fact that these zero tolerance policies do not make schools safer—on the contrary, they disrupt students’ education more than anything else. In 2012, only five percent of disciplinary actions nationwide involved a weapon,23 while forty-three percent of suspensions and expulsions were due to insubordination.24 Furthermore, students do not, for the most part, have notice as to what actions are considered infractions serious enough to warrant suspension, expulsion, or arrest. This lack of notice makes it difficult for students to know how to follow the rules. Children’s ability to learn depends on the stability of their environment at school. It is unlikely that the Skittles-throwing student imagined that police officers would handcuff him and place him in a juvenile detention facility as punishment. The disproportionately severe consequences students face for these minor infractions are a major disruption of students’ learning environment.

Additionally, arrests can have a significant impact on the rest of students’ lives. The experience and embarrassment of being arrested is likely to traumatize children, disrupting their ability to learn and, in the long run, to graduate. A study focusing on students in Chicago Public Schools showed that students with an arrest record have a seventy-two percent probability of dropping out of high school, compared to forty-six percent probability for those who have never been arrested—a significant twenty-six percentage point difference.25 Even when charges are dropped, arrest records affect children’s likelihood of getting a job, being admitted to college, and accessing financial aid.26

Though the “school-to-prison” pipeline is a complex issue, the following changes could help decrease the application and resulting harsh consequences of zero tolerance policies. First, suspensions and expulsions should be reserved for serious crimes such as bringing a gun to school—the original goal of the GFSA. Second, schools should make explicitly clear what infractions will lead to a suspension, expulsion, or arrest, so as to give students notice. School administrators should especially focus on helping at-risk youth who are likely to commit infractions that lead to a harsh and disruptive punishments. Educators should receive training to identify at-risk students as early as possible and provide those students with guidance and resources. Third, low-income parents whose children are arrested for minor infractions should be provided pro bono representation to contest charges. Non-profit organizations such as the Southern Poverty Law Center and Texas Appleseed have advocated on behalf of these children. However, as with many direct-service organizations, non-profits cannot single-handedly manage heavy dockets. Therefore, law firms should be encouraged to represent these clients as part of their pro bono commitments. Lastly, school administrators and police officers should use a totality of the circumstances analysis that considers students’ age, disabilities, recidivism, and mental state when assigning punishments. In no universe should an eleven-year-old be incarcerated for throwing Skittles in a bus. As former U.S. Attorney General Eric Holder said: “[a] minor school disciplinary offense should put a student in the principal’s office and not a police precinct.”27