Introduction
The range of disciplinary sanctions that may be invoked against students varies from state to state, and even within different school districts in the same state. Although disciplinary sanctions vary, the most common and potentially damaging sanctions are suspension and expulsion. Suspension and expulsion are the temporary or permanent withdrawal, respectively, of the privilege to attend school. However, it is important to understand that free education is not merely a privilege, it is a right guaranteed by law.
The fundamental right to a free education is guaranteed by the constitutions of all states. For instance, the Constitution of the State of Georgia states that it is a primary obligation of the state to provide its students with “adequate public education.” Ga. Const. Art. VIII section 1. Nevertheless, despite these guarantees, other state laws and local policies have endangered the fundamental right to education by enabling or sanctioning the disproportional discipline of minority students. Combined with so-called "zero tolerance" policies that have been put in place as a result of both local and national efforts to reduce violence in public schools, overly broad and discretionary legislation has resulted in a nationwide increase in mandatory suspensions and expulsions for even minor infractions, without regard to circumstances.
Disciplinary punishment often begins when a student is referred to the principal's office in a trip that may ultimately result in suspension, expulsion, or referral to an alternative education program. State laws rarely specify all the types of behavior for which a student may be expelled or suspended. Rather, local school districts generally have a great deal of discretion in setting their discipline code and penalties. Georgia, for instance, simply directs the local districts to enact and “age-appropriate student codes of conduct containing standards of behavior, a student support process, a progressive discipline process, and a parental involvement process.” Ga. St. 20-2-375. It also directs the Georgia Department of Education to enact model student codes, progressive discipline and parental involvement process, but local districts are not required to adopt them. Unfortunately, in the wake of zero tolerance legislation and heightened community concerns regarding the safety of schools, discipline codes and punishments have often expanded the expulsion-eligible offenses or alternative school-eligible offenses. This expansion has been met with widespread approval despite the danger that these disciplinary policies may be applied disproportionately and capriciously, particularly toward minority students.
Even after expulsion or suspension, education legislation in Georgia compounds the problems faced by students who are expelled from school, whether such expulsion is the result of zero tolerance policies or otherwise. If a student has been expelled or suspended, any other school district may refuse to admit the student on that basis alone. See, e.g., O.G.C.A. § 20-2-751.2. The ease with which students may therefore be expelled or suspended from a school and subsequently prohibited from attending another school on the basis of that penalty runs contrary to the fundamental right to education guaranteed by state constitutions.
This section discusses the legislative problems and cultural biases that often combine to promote the disproportional discipline of minority students and explores some of the legal and institutional mechanisms available to protect and defend students from disproportional disciplinary discrimination.
I. Disproportional Discipline of Minority Students
The disproportionate discipline of minorities in school has been well-documented. See, e.g., Patrick Pauken and Philip T.K. Daniel, "Race Discrimination and Disability Discrimination in School Discipline: a Legal and Statistical Analysis", 139 Ed. Law Rep. 759, 766-68 (2000) (discussing results of various studies indicating systematic overrepresentation of suspended and expelled African-American students as compared to white students on the basis of enrollment figures). For instance, although African Americans are only 8% of the school population in San Francisco, they make up 56% of the students whom the schools discipline. Moreover, for an individual minority student who is on the receiving end of disproportionate discipline year after year, their discipline records and academic opportunities become increasingly unequal to that of white students. The effect of suspension and expulsion resulting from such disproportionate or unnecessary discipline is cumulative and often has serious, far-reaching consequences for students. These consequences include:
• immediate loss of educational opportunities
• academic decline and failure
• increased likelihood of dropping out
• increased likelihood of being sent to the juvenile justice system
• permanent notations of such disciplinary actions in academic records
In addition to possible negative effects on students' immediate performance in school, any of these consequences may have a negative long-term impact on the chances of students' future admission to college. See "Civil Rights in Brief: Zero Tolerance and School Discipline" www.civilrightsproject.harvard.edu/resources/ civilrights_brief/discipline.php.
A. What are the causes of disproportional discipline?
1. Social and Cultural Factors
That minority students are often the subject of disproportional discipline in school is irrefutable; the reasons for it are more difficult to explain. The overrepresentation of minority students among students who are suspended or expelled may be a product of the interaction between poorly-conceived legislation and the social or cultural biases and lack of training of individuals involved in the educational system. Some of the underlying cultural stereotypes and pre-existing social conditions that have been offered to explain the disproportional discipline of minority students include:
• disparity between largely white, middle-class teaching or
administrative staff and predominately minority-composed student
body
• misperception of minority students' impassioned or emotional style of
communication as combative, argumentative or defiant of authority
• tendency of authorities to hastily resort to disciplinary action against
minorities due to prevailing stereotypes of minorities as dangerous or
violent
See, e.g., Pauken and Daniel, 139 Ed. Law Rep. at 764-65; "Opportunities Suspended: the Devastating Consequences of Zero Tolerance and School Discipline Policies" (June 2000) http://www.mti-sys.com/issd/news/zt_report2.html; A. A. Akom, "Racial Profiling at School: The Politics of Race and Discipline at Berkeley High" in Zero Tolerance: Resisting the Drive for Punishment in Our Schools 51-63 (William Ayers, Bernardine Dohrn, and Rick Ayers, eds., 2001).
2. Inconsistent and overbroad application of disciplinary rules
Minority students may be disadvantaged from the start based solely on the first level at which they may begin to be improperly singled out for discipline- in the classroom. Some studies have found that while roughly equal percentages of white and black students are ultimately suspended or expelled based upon decisions reached in the principal's office, greater numbers of black students are being expelled overall because a greater number of black students are referred to the principal's office in the first place. See Russell Skiba, "When Is Disproportionality Discrimination? The Overrepresentation of Black Students in School Suspension" in Zero Tolerance 179-80.
The disproportionate representation of minorities in student referrals is often the result of vague standards that allow too much teacher discretion to refer students who "misbehave". If discipline codes are not specific in defining the prohibited student behavior, the decision to remove a student from the classroom is vested solely in the teacher's discretion, enabling a teacher to remove the student anytime that student is perceived to have violated some vague rule such as “interfering with teacher communication or student learning. A broad range of actions would therefore encompassed by the statute, including serious violent behavior, but also potentially covering minor roughhousing, talking out of turn, paper airplane-throwing or any kind of "disruptive" behavior. Some teachers may avoid confronting the immediacy of student problems by offering them the easy solution of simply sending the student away through an office referral. Teachers who may harbor negative stereotypes or underlying misperceptions of minority students unfortunately may use the office referral as a means to avoid dealing with these students. This course of action can have the effect of exacerbating a minor problem that might have been better dealt with in class by someone who is more personally familiar with the situation and the student than a principal or other administrator who is faced solely with the task of determining what disciplinary sanctions to impose.
3. Zero tolerance policies
The vagueness of certain educational legislation and/or discipline codes may leave room for too much discretion in teacher referrals, thereby enabling teachers to refer students to the office based on social misunderstandings, misplaced racial bias or simple unwillingness to confront the problem personally. At the same time, the problem of too much discretion in the referral area is exacerbated by "zero tolerance" policies and legislation allowing too little discretion by teachers and administrators in cases involving weapons or certain types of threats.
Many of the zero tolerance policies currently in place in educational systems around the country originated in the Gun-Free Schools Act of 1994, which conditions federal funding for public schools on each state's adoption of legislation mandating at least a one-year expulsion of any student who brings a firearm to a school. See Alicia C. Insley, Comment "Suspending and Expelling Children from Educational Opportunity: Time to Reevaluate Zero Tolerance Policies", 50 Am. U. L. Rev. 1039, 1046-1050 (2001) (examining history of zero tolerance policies). In general, these zero tolerance polices have often led to the imposition of overly harsh or disproportionate punishments for relatively minor infractions. See Ralph M. Gerstein and Lois Gerstein, Education Law: An Essential Guide for Attorneys, Teachers, Administrators, Parents and Students §10.4 (Lawyers & Judges Publishing Co, Inc. 2004).