Breaking Schools’ Rules: Watching for Potential Litigation

By Mark Whitburn
Senior Staff Attorney

In its July 2011 report, Breaking Schools’ Rules, the Council of State Governments Justice Center paints a bleak picture of the disciplinary and juvenile justice trends developing in Texas schools.  As detailed in the report, Texas secondary school students—and particularly minority students—face disciplinary action with such a degree of frequency and severity that approximately 15 percent find themselves at least once in a disciplinary alternative education program and approximately eight percent end up at least once in a juvenile justice alternative education program.  Such programs offer so few educational services and opportunities in comparison with regular schools that students forced to participate in them necessarily suffer severe setbacks in their progress, to say nothing of the damage done to their views of themselves and their futures.  Numbers such as those presented in the report point to a critical problem confronting not only the affected youth but the society which depends on the healthy development of its young people.

The ACLU of Texas has identified numerous grounds for potential litigation in connection with these trends in Texas schools.  First, as the report reveals, minority students in Texas suffer the consequences of discretionary disciplinary action to such a disproportionate degree that concerns about violations of these students’ Fourteenth Amendment right to equal protection of the laws must necessarily arise.  After all, the report could not account for these disparities by pointing to any factors other than race.  Second, students so dramatically impacted by school discipline deserve at a minimum for the relevant authorities to employ fair procedures in applying that discipline.  If these authorities fail in this regard, they may violate the Due Process Clause of the Fourteenth Amendment.  Third, many of the programs at issue appear to offer so little in the way of educational services to the students assigned to them that they may well violate the Texas Education Code and relevant regulations.  In light of these three and still more sources of possible litigation, the ACLU of Texas is keeping a watchful eye on Texas schools.

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