Testimony of Eve L. Hill Before the U.S. Commission on Civil Rights
My name is Eve Hill. I am a partner with the firm of Brown, Goldstein & Levy. Until January of this year, I was Deputy Assistant Attorney General at the Civil Rights Division of the U.S. Department of Justice, where I worked on the Division’s disability civil rights, education civil rights, and Title VI implementation. I’ve been a disability civil rights attorney for about 24 years, having worked in federal government, local government, academia, nonprofit, and private practice.
The Right to Education
Today’s hearing addresses the question of “The School-to Prison Pipeline: The Intersections of Students of Color with Disabilities.” This is an essential issue we, as a society, urgently have to address. Equal access to education is the foundation of the American principle that all people are created equal and are entitled to equal opportunities to succeed and contribute to society. Chief Judge Warren recognized in 1954 that “In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunities of an education. Such an opportunity, where the state has undertaken to provide it, is a right that must be made available on equal terms.”[1]
Equal access to education is the foundation of our societal self-interest in ensuring that we don’t lose the ability to benefit from the contributions of every member of our communities. And it is the foundation of our inalienable right to life, liberty and the pursuit of happiness.
Access to education has been a cornerstone of civil rights – and the denial of access to education has been a cornerstone of the denial of civil rights – virtually since the beginning of our republic. The continuation of slavery was supported by the denial to African-Americans of the right to learn to read and right. The denial of education became a basis for denying African-Americans the ability to vote, to work, and to hold public office after slavery was officially ended. And equal access to integrated education was the focal point of landmark civil rights cases such as Brown v. Board of Education.
Civil rights advocates have long challenged systems that sought to deny education to minorities at the front door. We’ve marched, filed lawsuits, and provided escorts and witnesses to support minority students as they fought to enter the front doors of educational institutions. But, unfortunately, the courts have not recognized education as a fundamental right under our Constitution.
Opening the Schoolhouse Doors –In the Front Door and Out the Back
Sadly, there is still a great deal of work to be done to ensure that all students have equal access to the front doors of our educational systems. Racial segregation in public schools remains a significant problem, as demonstrated by the nearly 200 desegregation consent decrees still not fully implemented and by studies showing that the percentage of segregated high schools has grown from 2000 to 2014.[2] And despite the Supreme Court’s[3] declaration that unnecessary segregation of students with disabilities violates federal law, students with disabilities are still placed in separate schools, like the Georgia Network for Educational and Therapeutic Support (GNETS),[4] at alarming rates.[5] Students with disabilities continue to face barriers – of attitudes, of assumptions, and of services – to getting access to the same education their nondisabled peers receive. And school choice programs are adding to the barriers keeping minority students and students with disabilities out of equal education.
But access to the front door is not the only barrier to equal education we face today. The stereotypes and prejudices that led educational systems to block the front door continue to play out once minority students and students with disabilities pass the schoolhouse gate. And those stereotypes and prejudices are creating a back-door exit through with our children of color and with disabilities are being escorted at alarming rates. That back-door exit leads almost inevitably to incarceration, which leads directly to unemployment, homelessness, and poverty.
As of 2014, out-of-school suspensions have increased by about 10 percent since 2000 and have more than doubled since the 1970s. All this is despite the fact that incidents of school violence have decreased.[6] In 2015, the Department of Education’s Office for Civil Rights found that African-American students were three times more likely to be suspended or expelled than white students. African-American and Latinx students make up 40% of public school students, but are over 50% of the students arrested in school or referred to law enforcement. Students with disabilities are more than twice as likely to receive out-of-school suspensions than nondisabled students and, although they are only 12% of the public school population, they are 25% of the students referred to law enforcement and 25% of those subjected to school-based arrest.[7]
But the back-door exit isn’t as obvious or blatant as the bars at the front door. It happens one child at a time. It isn’t written down. It isn’t announced publicly – in fact, it is denied. And fighting it often depends on one parent, on their own, fighting for their individual child.
The back-door exit is often just the flip side of the coin of barring the front door. The police officers who used to bar the front door are now school resource officers who escort children out the back door. The eligibility criteria that used to keep minority students and students with disabilities from entering are now “zero-tolerance” policies that push them out. Schools have also adopted “broken windows” approaches to small offenses in order to discourage more serious crimes. Just as that approach to law enforcement in communities resulted in constitutionally questionable policing, this approach in schools has resulted in stereotypes about students of color and students with disabilities – that they’ll be disruptive or disrespectful, that they’ll make other students uncomfortable, or that they’ll behave differently– becoming bases for removing or arresting children of color and children with disabilities.
School behaviors that used to be a basis for a call to a parent, a trip to the principal’s office, or an after-school detention, are now treated as a reason to call law enforcement and send a child to court. Schools’ intolerance of different behavior, combined with the criminalization of that behavior, disparately affects both minority students and students with disabilities, and has even greater effects on minority students with disabilities. Approaching the issue through either a racial lens or a disability lens is not sufficient. We must use all the tools we have to achieve justice in education and keep our children in school.
The Effects of Exclusion from Education
In an increasingly technology-based economy, access to education is increasingly important to individuals’ quality of life. Excluding children from education, whether it happens at the front door or through the back door, therefore, has devastating effects on their lives, their communities, and the economy. For example:
- At age 25, U.S. adults without a high school diploma can expect to die 9 years sooner than college graduates.
- Americans with less than a high school education were almost twice as likely to die in the next 5 years compared to those with a professional degree.
- Among whites with less than 12 years of education, life expectancy at age 25 fell by more than 3 years for men and by more than 5 years for women between 1990 and 2008.
- By 2011, the prevalence of diabetes had reached 15 percent for adults without a high school education, compared with 7 percent for college graduates.[8]
Data from the U.S. Department of Labor’s Bureau of Labor Statistics shows a striking correlation between unemployment and low wages and lack of a high school diploma, with 5.2% of high school graduates unemployed versus 7.4% of non-graduates, and high school graduates earning $692 per week compared to non-graduates earning only $504 per week.[9]
The Effects of Incarceration
The effects of excluding students from school are increased when the students are funneled into a justice system that adds stigma, restricts rights and opportunities, and increases burdens on those students’ lives. The shift in disciplinary practices and policies from those administered by schools and teachers to those administered by law enforcement further stigmatizes children, restricts their access to employment and housing, and imposes additional burdens on students that follow them throughout their adult lives.
Many applications for employment, public benefits, housing, financial aid, licensing, military service, or admissions to public colleges and universities call for information about past arrests or criminal convictions without distinguishing between adult criminal activity and child arrests or juvenile proceedings. Some applications even ask if the applicant was ever suspended or expelled from school, has ever been adjudicated, has ever entered a pre-trial diversion program or has ever entered a plea of no contest or nolo contendere. In addition, juvenile records are subject to varying degrees of protection from public disclosure.
A juvenile delinquency proceeding can also have significant financial and other consequences for a student and their family. In some states, juveniles and their families may be responsible for paying court costs. Under “one-strike” rules in public housing a student’s school-based arrest or referral to law enforcement can result in the eviction of the student’s entire family. And under some state and federal laws, a juvenile conviction can be the basis for an enhanced sentence for a subsequent adult conviction.
The School-to-Prison Pipeline at the Intersection of Race and Disability
As discussed above, students of color and students with disabilities are both disproportionally subjected to expulsion, school-based arrests, and referrals to law enforcement. African-American are 15.5% of students, but 25% of nondisabled students referred to law enforcement and 35% of nondisabled students arrested in school. White students, by comparison, are 50% of all students, but only 38% of nondisabled students referred to law enforcement and 33% of nondisabled students arrested. [10]
Minority students with disabilities suffer the disproportion on both bases. While African-Americans represent only 18.5% of students with disabilities under the IDEA, they are 29% of the students with disabilities referred to law enforcement and 35% of students with disabilities subjected to school-based arrest. By comparison, white students are 51% of students with disabilities served under the Individuals with Disabilities Education Act (IDEA), but are only 40% of the students with disabilities referred to law enforcement and 36% of students with disabilities arrested in school.[11]
Boys are more subject to school discipline than girls. Looking at the impact of school discipline on boys reveals a similar racial disparity. African-American students are only 18% of boys with disabilities served under the IDEA. Yet they are 34% of boys with disabilities arrested in school, and 28% of boys with disabilities referred to law enforcement. By comparison, whites are 51% of boys served under the IDEA, and are only 37% of boys with disabilities arrested in school and 41% of those referred to law enforcement.[12]
The racial disparities are even more pronounced among girls. African-American girls are 18% of girls served under the IDEA. Yet they are 40% of girls with disabilities subjected to school-based arrest and 32% of girls with disabilities referred to law enforcement. White girls, who are 52% of girls served under the IDEA, are only 33% of girls with disabilities arrested and only 38% of girls referred to law enforcement.[13]
Responses
In 2013-14, approximately 60,000 students were arrested in school. Almost 16,000 (27%) of those were students with disabilities and over 20,000 (34%) were African-American. Approximately 9,000 (15%) were students of color with disabilities. Nearly 200,000 students were referred to law enforcement.[14] 51,000 (26%) of those were students with disabilities and approximately 50,000 (25%) were African-American.[15] 27,000 (14%) were students of color with disabilities. The students of color with disabilities will likely bear the burdens of these intersections of school and law enforcement, in addition to the prejudices against minorities and people with disabilities, for the rest of their lives.
Federal laws prohibit discrimination on the bases of both race and disability.[16] In addition, federal law requires supportive services for students with disabilities and provides some protections from expulsion and suspension.[17]
Possible over- and under-representation of minority students in various categories of special education may also play a role in both further stigmatizing minority students and denying them the services and protections of federal law. Identification of disabilities among minority communities is a hot-button issue, but denying the failures of our disability rights systems to appropriately serve minority students will not improve outcomes for our children or our communities.
The disability rights laws can be an important tool in stopping the school-to-prison pipeline. The Americans with Disabilities Act (ADA) prohibits discrimination against students with disabilities and requires that policies and practices be modified when necessary to allow a student to fully participate in school. The IDEA requires students with disabilities to be provided educational services to help them learn and limits schools’ ability to exclude students with disabilities from school, including through disciplinary action. Civil rights advocates must not let the stigma often associated with a disability diagnosis stop their clients from accessing the additional protections of the disability rights laws.
But minority students are overrepresented among those with disabilities facing exclusionary discipline. So disability rights advocates must bring racial justice tools to bear in their work as well.
And students with disabilities of all racial and ethnic backgrounds are also overrepresented in exclusionary discipline, despite the protections of the ADA and IDEA. Some of this problem is likely due to special education teachers not being provided the training and support they need to respond constructively to disruptive disability-related behaviors. But much of it is also related to lack of understanding and enforcement of the limits the ADA and IDEA place on zero-tolerance policies, school resource officers, and use of law enforcement to respond to disability-related behaviors. And much of it is disguised by our failures to recognize and respond to the patterns of discrimination occurring in school discipline systems.
In order to see these patterns, the Department of Education Office for Civil Rights’ Civil Rights Data Collection is more important than ever. And finally, we must be able to use the tools that can effectively address these patterns. It is difficult to enforce federal law in the face of a zero-tolerance policy that looks neutral on its face but is enforced in a race- or disability-biased way. Each student exclusion in such a system looks like a neutral application of the no-tolerance rule. But each non-exclusion is unrecorded. So there is often no way to show that white students are not being excluded for the same behaviors that minority students with disabilities are being disciplined for. We must be able to examine the results of disciplinary policies – the disproportion of exclusionary discipline applied to minority and disabled children – and take action to address them. In short, the disparate impact approach to proving civil rights violations must be protected and enforceable. Unfortunately, courts have restricted the ability of parents and their attorneys to challenge discrimination using evidence of disparate impact. Right now – when we need it most to stop the school-to-prison pipeline from ruining the lives of our children – federal enforcement is more important than ever.
[1] Brown v. Bd. of Education of Topeka, 347 U.S. 483 (1954).
[2] “[T]he percentage of H/PBH schools out of all K-12 public schools increased steadily from 9 percent in 2000-01 (7,009 schools) to 16 percent in 2013-14 (15,089 schools)…. [The high-minority schools] represented 61 percent of all high-poverty schools in 2013-14. Government Accountability o Office, “K-12 EDUCATION: Better Use of Information Could Help Agencies Identify Disparities and Address Racial Discrimination,” at 10 (April 2016), available at http://www.gao.gov/assets/680/676745.pdf.
[3] Olmstead v. L.C., 527 U.S. 581 (1999).
[4] Justice Department Sues Georgia for Unnecessarily Segregating Students with Disabilities, https://www.justice.gov/opa/pr/justice-department-sues-georgia-unnecessarily-segregating-students-disabilities (August 23, 2016) (“Approximately 4,600 students with disabilities are currently in GNETS. In July 2015, the department issued an extensive findings letter , notifying the state that it was violating the ADA by unnecessarily providing mental health and therapeutic educational services to students with behavior-related disabilities in segregated settings, denying them opportunities for meaningful interaction with their peers without disabilities.”)
[5] According to the National Center for Education Statistics at the Department of Education, nearly 20% of students with emotional disabilities, over 20% of students with multiple disabilities, and over 10% of students with vision disabilities were educated outside general education schools (in disability-specific schools, residential facilities, home schools or hospitals, private schools, or correctional facilities), National Center for Education Statistics, Fast Facts – Inclusion of Students with Disabilities, available at https://nces.ed.gov/fastfacts/display.asp?id=59.
[6] Id.
[7] U.S. Department of Education, Office of Elementary and Secondary Education, Rethink School Discipline: Resource Guide for Superintendent Action (July 2015), at 10, available at https://www2.ed.gov/policy/gen/guid/school-discipline/rethink-discipline-resource-guide-supt-action.pdf .
[8] Zimmerman, Woolf, and Haley, “Population Health: Behavioral and Social Science Insights: Understanding the Relationship Between Education and Health,” U.S. Dept. of Health and Human Services, Agency for Healthcare Research and Quality, available at https://www.ahrq.gov/professionals/education/curriculum-tools/population-health/zimmerman.html.
[9] Bureau of Labor Statistics, Employment Projections, Unemployment Rates and Earnings by Educational Attainment, available at https://www.bls.gov/emp/ep_chart_001.htm.
[10] Department of Education Office for Civil Rights Civil Rights Data Collection 2013-14, available at https://ocrdata.ed.gov/StateNationalEstimations/Estimations_2013_14.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.; Americans with Disabilities Act, 42 U.S.C. § 12131 et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.
[17]Individuals with Disabilities Education Act, 22 U.S.C. Ch. 33; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.