Public schools suspend millions of students each year, but less than ten percent of suspensions are for serious misbehavior. School leaders argue that these suspensions ensure an orderly educational environment for those students who remain. Social science demonstrates the opposite. The practice of regularly suspending students negatively affects misbehaving students as well as innocent bystanders. All things being equal, schools that manage student behavior through means other than suspension produce the highest achieving students. In this respect, the quality of education a school provides is closely connected to its discipline policies.
Reformers have largely overlooked the connection between discipline and educational quality. This oversight has limited theoretical and practical tools for change. On the theoretical side, reformers miss the opportunity to pit harsh discipline as the enemy of good schools. Instead, they fall victim to the narrative of bad students as the enemy of good ones. On the practical side, they miss the opportunity to demand legal reform. Instead, they relegate themselves to asking schools to voluntarily adopt less severe discipline policies. Thus far, voluntary efforts have produced some significant changes, but the changes are isolated and limited in scope. In short, reformers need new legal theories and tools to demand reform.
Otherwise, harsh discipline will remain the dominant paradigm for the foreseeable future and efforts to improve educational quality and achievement—the most pressing item on the national agenda of the day—will continue to fall short. While some scholars have proposed limits on the most egregious discipline policies, this Article is the first to offer a legal theory that would substantively reform school discipline on the whole and improve educational quality. The theory is grounded in the affirmative education rights and duties found in state constitutions. These rights and duties give rise to two distinct but interrelated arguments. First, because students have a constitutionally protected individual right to education, suspensions and expulsions should trigger heightened scrutiny. Heightened scrutiny would not bar suspensions, but it would force states to justify the efficacy of suspension. The practical result would be to prompt states to adopt pedagogically sound approaches to student misbehavior. Second, discipline practices that undermine educational quality violate states’ constitutional obligation to provide equal and adequate educational opportunities to all students. In these instances, state constitutions should obligate states to intervene with reform. Unlike past strategies, these two steps can ensure discipline reform and educational quality improvements that normally prove elusive.
Derek W. Black,
Reforming School Discipline,
Nw. U. L. Rev.