The Law of Disposable Children

Discipline in Schools

With almost no jurisprudence from the Supreme Court constraining schools’ discretion in disciplining schoolchildren, it has been left to the states to define the constitutional boundaries of school practices that include exclusion, isolation, and physical restraint. But overwhelmingly, states defer to schools to set their own rules on disciplinary proceedings. This not only encourages schools to grant themselves large degrees of power over students’ bodies and educational futures; it creates perverse incentives for schools to craft vague rules that provide little due process. The result is a system that permits discipline practices that are highly intrusive, discriminatory in numerous ways—including by race, disability status, homelessness, and poverty—and are often destructive to children’s educations and future life options. For instance, school jurisdictions can allow schools to not only expel students from an individual school with disciplinary procedures that can last a matter of seconds but to exclude students from the entire public school system for up to two years. Students excluded from school entirely for long periods typically never recover from such disruptions and are drawn into the juvenile justice system.

In this Article, we describe and critique the minimal Supreme Court jurisprudence in the area. We then use the case study of Illinois to examine the permissive regulatory system that grants school administrators—as well as police stationed in schools—enormous control over children. Finally, to examine how discipline practices actually work on the ground, we conducted interviews with eighteen experts in the field. Our interviews with juvenile court judges, school administrators, probation officers, reintegration officers, child advocates, and others, reveal a remarkable level of agreement that the system not only fails many students but permits schools to actively harm some students. Schools are targeting some students for statuses they perceive as stigmatizing for the school, arresting and handcuffing students just to make a point, and illegally preventing students from reentering schools once released from the criminal justice system. The situation is so dire that there are children who remain in prison after having served their sentences because reentering school and receiving necessary services is so difficult that they are better off remaining incarcerated. Students are being thrown out of school, put into the juvenile justice system, and forgotten about. The Supreme Court must step in to prevent children from being treated as disposable.

* Professor of Law, Northwestern University Pritzker School of Law.

** Law Clerk for the Honorable Richard C. Tallman of the United States Court of Appeals for the Ninth Circuit.

The full text of this Article is available to download as a PDF.