Document Type
Article
Publication Date
5-13-2025
Abstract
Prior legal scholarship has described the school-to-prison pipeline as originating in the “zero-tolerance” school discipline policies of the 1980s and 1990s. This Article shows that, in fact, it originated in resistance to school desegregation. The initial rise in exclusionary school discipline in the U.S. began in the late 1960s, in reaction to federal efforts to enforce school desegregation orders. Across the country, school districts forced to desegregate adopted subjective school disciplinary policies, then deployed those policies to disproportionately exclude Black students from the newly desegregated schools. The racially disparate use of school discipline received national attention during the 1970s through several pathbreaking reports that used the term “pushout” to describe how large numbers of Black students experienced repeated suspension and expulsion, eventually leading them to leave school entirely. In a story that has not yet been told in legal scholarship, I describe how civil rights advocates pushed the Office for Civil Rights to address school discipline as part of its duty to prosecute discrimination. Today’s facially race-neutral school discipline policies are thus rooted in a history of intentional racial exclusion. Although resistance to desegregation may not be the conscious motive behind suspension and expulsion of Black students, the legacy of this history persists through attitudinal and institutional infrastructure that originally developed to counter integration, and that persist today. I argue that these attitudes and policies constitute what I term “legacy discrimination” that has evolved to prevent Black students from accessing their education on terms equal to white students. Exclusionary school discipline serves both as a mechanism for excluding Black students and simultaneously as a facially neutral basis for justifying their exclusion and sustaining the myth of white supremacy. Understanding today’s school discipline practices as legacy discrimination reveals the inadequacy of current antidiscrimination law, but also creates pathways to address exclusionary discipline within a broader movement for racial justice in schools.
Keywords
civil rights, racial exclusion, legacy discrimination, exclusionary discipline, racial justice, school-to-prison pipeline, Brown v. Board of Education
Publication Title
Boston University Law Review
Repository Citation
105 B.U. L. Rev. 641 (2025)