By: Jocelyn Schultz
The statistics are concerning for the disproportionate number of minorities in prison. Thirty-two percent of black males and seventeen percent of Latino males are incarcerated during their lifetime, compared to the six percent of white males. Additionally, forty-two percent of black males occupy death row. In regards to the school system, contemporary schools disproportionally punish minority students. About twenty to thirty percent of blacks and Latinos account for all twelfth-grade suspensions and expulsions. As a result, students of color are disparately being transferred from schools to prisons. This transfer has been categorized as the “school-to-prison pipeline.” The phrase, “school-to-prison pipeline (“pipeline”),” categorizes the ambiguous, yet systematic, process through which a wide range of education and criminal justice policies and practices collectively result in minorities being disparately pushed out of schools and into prisons.
Two concepts encompass the pipeline effect: zero-tolerance policies and educational tracking. First, schools have expanded zero-tolerance policies. As a result, adolescent behavior becomes a punishable offense, which provides grounds for both school and criminal sanctions. Second is educational tracking, which is the practice of separating students into different ability groups such as gifted or non-gifted groups where students get particularized academic instruction. By separating students, it disproportionately places minority students into lower tracks. This is harmful not only because these students are not getting the specialized academic instruction but because these students are often subjected to instructional methods that stimulate disruptive behavior. Both zero-tolerance policies and educational tracking reveal the pipelines inter-institutional character: tracking minority students leads to disruptive behavior and results in suspensions, expulsions, or incarceration.
As a result of these policies and practices, the pipeline gives rise to a number of legal claims because these practices are very harmful to minority youth. Equal protection claims are among those claims, because minorities are being pushed out of schools. The Note explains two different approaches in evaluating these claims: the motive-centered approach and the structural racism approach. The Note explains how taking a structural racism equal protection approach provides an alternative approach for courts to use by taking critical race theory and science systems into account. The approach analyzes and evaluates historical and inter-institutional processes in order to determine how they result in racial harm, creating a more expansive approach to equal protection. Since criminalization, sorting, and economic polices and practices come together to deny minorities opportunities by pushing them out of school and into prison, the Note suggests that courts use a structural racism approach because it protects minorities more adequately than a motive-centered approach.
Chauncee D. Smith, Deconstructing the Pipeline: Evaluating School-To-Prison Pipeline Equal Protection Cases Through a Structural Racism Framework, 36 Fordham Urb. L.J. 1009 (2009).