An 11-year-old at a middle school in Highlands Ranch, Colorado, took a lollipop from a jar on the teacher’s desk and was charged with theft. The boy was convicted of a misdemeanor and put on probation.
In St. Petersburg, Florida, a five-year-old girl was arrested and forcibly removed from her elementary school by local police for having a temper tantrum in class.
These stories are typical of what is happening in schools across America today. Large numbers of students are being pushed out of school as a result of overly harsh school discipline practices, including so-called “zero tolerance” policies. These practices are paving the way for higher dropout rates and involvement in the criminal justice system, a pathway often referred to as the “school-to-prison pipeline.” And the pipeline is simply the first step in the road to the mass incarceration crisis that currently exists in this country. There are now more than seven million Americans in prison, on probation, or on parole—the highest rate in our nation’s history and in the world. Given the appalling fact that African-American men in the United States are now incarcerated at a rate 6.5 times higher than white men, some are referring to the current state of our criminal justice system as “the new Jim Crow.”
“Zero tolerance” policies—policies that mandate predetermined consequences for rule infractions, regardless of the circumstances—were initially aimed at deterring school violence and gained widespread popularity after the Columbine High School shootings in 1999. The best way to prevent serious violence at school, the theory went, was to ban any and all weapons or threats of violence, and to accept no excuses.
Over the two past decades, however, many school districts have enacted harsh disciplinary consequences—suspensions, expulsions, alternative schools, and referrals to law enforcement—for a broad array of student actions, most of which are non-violent, less disruptive offenses. Zero tolerance policies often apply to not only the possession of weapons, drugs and alcohol, but also to the possession of common objects such as nail clippers and scissors, and to behaviors like truancy, tardiness, dress code violations, and vague catch-all categories like “insubordination” and “disrespect.” In Florida, for example, a 10-year-old girl had a small knife in her lunchbox, placed there by her mother for cutting an apple. She immediately gave the knife to her teacher but was expelled from school for possessing a “weapon.”
Zero tolerance policies have led to an explosion in suspensions and expulsions in public schools across the nation. Between 1974 and 2006, the rate at which U.S. students were suspended and expelled from school nearly doubled—from 3.7% of students in 1973 to 6.9% of students in 2006. From 2002 to 2006, the U.S. Department of Education estimates there were 250,000 more suspensions and a 15% increase in expulsions.
Despite the soaring use of exclusionary school disciplinary policies, there is no evidence that their use improves student behavior or makes schools safer. In fact, school suspension appears to predict higher future rates of misbehavior and suspension. Studies of school suspension have typically found that 30 to 50 percent of those suspended will be suspended again. One study found that students who were suspended at the sixth-grade level were more likely to be referred to the office or suspended in eighth grade, leading the researchers to conclude that “for some students, suspension functions as a reinforcer rather than a punisher.”
The Racial Discipline Gap
The huge increase in harsh school punishments is disproportionately applied to children of color. In the 2006-07 school year, African-American students were suspended at over 3 times the rate and expelled at 3.5 times the rate of white students, according to the U.S. Department of Education’s Office of Civil Rights. Latino students are 42% more likely to be suspended, and over one-and-a-half times as likely to be expelled, as their white peers. This is true despite the fact that research has found no evidence that African-Americans have higher rates of misbehavior in school.
Studies also show that African-American students receive more severe punishments and are punished disproportionately for subjective transgressions that can be “in the eye of the beholder.” White students are referred to the office at a higher rate than students of color for offenses that are more objectively proven: smoking, vandalism, leaving without permission, and obscene language. In contrast, African-American and Latino students are referred for discipline at a higher rate than their white peers for disrespect, excessive noise, threat, and loitering—behaviors that rely more on subjective judgments on the part of educators.
Kids Who Are Suspended and Expelled Are at Greater Risk of Dropping Out
The consequences of harsh disciplinary practices are devastating. Students who are repeatedly suspended or who are expelled are likely to fall behind their peers academically, paving the way to their eventual dropout. The research correlates dropout to suspensions and expulsions. A student is also more likely to drop out if he or she has been retained for a grade—a common consequence of multiple suspensions.
It’s easy to see that the racially disparate impact of harsh school disciplinary policies contribute to the shockingly huge racial disparity in high school graduation rates: while 78 percent of white students graduate high school in the U.S., only 57 percent of African-Americans and 58 percent Hispanics do.
Enter the Criminal Justice System
The number of people imprisoned in our nation’s prisons and jails has exploded during the past two decades. Between 1980 and 2000, the number grew from 300,000 to more than two million.
There are multiple causes for this mass incarceration, including overly harsh drug (and other criminal) laws, prosecutors who over-charge offenses to force guilty pleas, mandatory sentences, and inadequate criminal defense lawyers.
But many believe that the school-to-prison pipeline is a direct contributor to the current mass incarceration crisis. Many schools directly turn to law enforcement to handle school-related misconduct—and not just for violent behavior. While law enforcement and the juvenile justice system play valuable roles in protecting school safety, too many school disciplinary incidents are being handled by the police and courts rather than by the schools themselves.
Not surprisingly, a student’s involvement in the criminal justice system while in high school often leads to his dropping out. According to a 2006 study, a first-time arrest during high school nearly doubles the odds of a student dropping out, and a court appearance nearly quadruples those odds. According to the Centers for Disease Control, “out of school” youth are significantly more likely than “in school” youth to engage in physical fights, carry a weapon, smoke, use alcohol and other drugs, and engage in sex.
The racial disparities that started with school disciplinary practices continue—and worsen—once the courts are involved. In fact, the disparities increase at every stage of the school-to-prison pipeline. Children and teens of color are imprisoned in juvenile prisons at almost three times the rate of their white counterparts. And in the adult prison system, African-American men in the United States are currently incarcerated at a rate 6.5 times higher than white men.
Stopping the School to Prison Pipeline
It’s clear that zero-tolerance policies and exclusionary school discipline practices are not working and are contributing to the shockingly high number of people of color languishing in our prisons and jails. The good news is that there are many alternatives and proven-effective strategies for addressing school behavior problems. But unless educational policymakers address the school-to-prison pipeline and its racial disparities, there will continue to be a growing racial under-caste in America.
 The author is a Visiting Assistant Professor in the Civil Litigation and Civil Rights Clinics at DU Sturm College of Law. She previously served as Legal Director of the Southern Poverty Law Center, a civil rights advocacy organization headquartered in Montgomery, Alabama.
 U.S. Dep’t of Justice, Correctional Population in the United States, 2010 1 (Dec. 2011), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cpus10.pdf.
 Id. at app. tbl. 3.
 Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010).
 Linda M. Raffaele Mendez & Howard M. Knoff, Who Gets Suspended from School and Why: A Demographic Analysis of Schools and Disciplinary Infractions in a Large School District, 26 Education and Treatment of Children 30-51 (2003), available at http://www.mde.k12.ms.us/acad/ToolKit/Articles/Cultural_Diversity/Mendez.pdf.
 Daniel Losen & Russell Skiba, Suspended Education: Urban Middle Schools in Crisis, The Civil Rights Project 9 (2010), http://civilrightsproject.ucla.edu/research/k-12-education/school-discipline/suspended-education-urban-middle-schools-in-crisis/Suspended-Education_FINAL-2.pdf.
 Id. at 3 fig. 1.
 Test, Punish, and Push Out: How ‘Zero Tolerance’ and High-Stakes Testing Funnel Youth into the School-to-Prison Pipeline, Advancement Project 20 (2010) [hereinafter Pipeline], available at http://www.advancementproject.org/sites/default/files/publications/rev_fin.pdf.
 American Psychological Association Zero Tolerance Task Force, Are Zero Tolerance Policies Effective in Schools?: An Evidentiary Review and Recommendations, Am. Psychologist 63, 852-62, available at http://www.apa.org/pubs/info/reports/zero-tolerance.pdf.
 Virginia Costenbader & Samia Markson, School Suspension: A Survey of Current Policies and Practices, 78 NASSP Bulletin, no. 564, at 103 (1994).
 Tary Tobin et al., Patterns in Middle School Discipline Records, 4 J. of Emotional and Behav. Disorders 82, 91 (1996).
 Pipeline, supra note 8, at 20.
 Losen & Skiba, supra note 6, at 10 (collecting research).
 Russel J. Skiba, et al., The color of discipline: Sources of Racial and Gender Disproportionality in School Punishment, 34 Urb. Rev. 317-42 (2002).
 Russ Skiba & Reece Peterson, The Dark Side of Zero Tolerance: Can Punishment Lead to Safe Schools?, 80 Phi Delta Kappan 372 (1999), available at http://flpbs.fmhi.usf.edu/revision07/research/Research%20Articles%20Supporting%20PBS/darker%20side%20of%20zero%20tolerance%201.13.04.pdf.
 High Stakes: Testing for Tracking, Promotion, and Graduation 129 (Jay P. Heubert & Robert M. Hauser, eds., 1999), available at http://www.nap.edu/openbook.php?record_id=6336&page=R1.
 Diplomas Count 2011: Beyond High School, Before Baccalaureate, Education Week 2 (2011), available at http://www.edweek.org/ew/toc/2011/06/09/index.html?intc=EW-DC11-EM.
 Pew Center on the States, One in 31: The Long Reach of American Corrections (2009).
 For an excellent examination of the current state of mass incarceration and its devastating impact on communities of color, see Alexander, supra note 4.
 Gary Sweeten, Who Will Graduate? Disruption of High School Education by Arrest and Court Involvement, 24 Just. Q. 462 (Dec. 2006).
 Centers for Disease Control and Prevention, Health Risk Behaviors Among Adolescents Who Do and Do Not Attend School—United States, 1992, 43 Morbidity and Mortality Weekly Report 129 (Mar. 24, 1994), available at http://www.cdc.gov/mmwr/preview/mmwrhtml/00025174.htm.
 See, e.g., U.S. Dep’t of Justice, Juvenile Offenders and Victims: 2006 National Report 7 (2006), available at http://www.ojjdp.gov/ojstatbb/nr2006/downloads/NR2006_HL.pdf (“Even with the large drop in the black custody population, the 2003 custody rate was highest for black youth (754/100,000). The rates were lower for Asian (113), white (190), Hispanic (348), and American Indian youth (496).”)
 See, e.g., U.S. Dep’t of Justice, Correctional Population in the United States, 2010 8 app. tbl. 3 (2011), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cpus10.pdf.
 For more information on these strategies, see www.pbis.org. For policy recommendations, see Losen & Skiba supra note 6, at 12.