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South Carolina schools often criminalize black students. The ACLU is fighting back.

As America’s criminal justice system became more punitive over the past few decades, so did school discipline. In fact, school discipline became so harsh that it became tied to the criminal justice system — getting students sent to jail for infractions that may have gotten them detention before.

The American Civil Liberties Union (ACLU) on Thursday announced that it’s suing South Carolina to fight laws that fuel this "school-to-prison pipeline." According to the ACLU, the "disturbing schools" law "allows students in school to be criminally charged for typical adolescent behaviors including loitering, cursing, or undefined ‘obnoxious’ actions on school grounds." The organization is also going after a vague "disorderly conduct" law, which "prohibits students from conducting themselves in a ‘disorderly or boisterous manner.’"

The ACLU found that these laws have been used on hundreds of students — some as young as 7 years old. And black students are nearly four times as likely to be targeted under the law.

These laws came under some public scrutiny last year when a police officer at Spring Valley High School was fired after he brutally arrested a black student. Richard County Sheriff Leon Lott questioned at the time whether the deputy should have been called into the classroom at all: "I think that's one of the problems that we've got. If we have a child that's not following the rules, deputies are getting called in to handle that. And that's really not our role in the school. And I think sometimes the teachers and administrators should be handling things like this."

One of the students involved in the ACLU lawsuit witnessed and tried to protest the brutal arrest in Spring Valley High School. She was then arrested. The ACLU explained:

Plaintiff Niya Kenny, 18, is a former student at Spring Valley High School in Columbia. As a student last October, she witnessed a violent, headline-grabbing altercation in her classroom when a school resource officer flipped a classmate over in her desk and dragged her across the room.

Kenny, who is African-American, spoke up against the officer’s actions, recounting, "I was in disbelief and I started praying out loud. I said, ‘Isn’t anyone going to help her?’" Kenny was in turn arrested and hauled off to a detention center.

How South Carolina’s "disturbing schools" law works

The "disturbing schools" law is incredibly vague — students can be charged for "acting in an obnoxious manner" at school. It carries a hefty punishment: a fine of up to $1,000 or jail time up to 90 days.

South Carolina's school disturbance law. South Carolina State House

It's under this statute that the student who was brutally arrested in Spring Valley High School was charged after she allegedly refused a teacher’s orders to put away her phone and leave the classroom.

Over the past few years, "disturbing schools" has been the third most common offense associated with juvenile cases sent to the solicitor, according to data from the South Carolina Department of Juvenile Justice. In fiscal years 2013 and 2014, about 1,189 kids were processed through the department for disturbing schools, which made up about 7 percent of all 16,754 processed juvenile cases.

These are arrests that likely would not have existed before the law. Instead of sending kids to the juvenile justice system, schools would have likely handled most of these situations with their own in-school discipline, like detention or suspension. Or perhaps the schools would have seen the students’ behavior in these cases as part of a mental health problem, and referred them to get medical help. But through these laws, states and schools have created a pipeline from the classroom to a juvenile detention center.

That’s not to say that police officers aren’t going to be needed in schools sometimes. In a country with such a big gun problem, they are. But laws like South Carolina’s enable excessive use of police officers — particularly in situations when students may be disobedient but aren’t posing a real threat to anyone.

The ACLU argues that the law violates students’ constitutional due process protections.

One of the other problems with these types of "zero tolerance" policies, which states around the country have adopted, is that they're so vague. This makes it easy for school staff to selectively enforce them, often in a way that disproportionately targets black students.

There’s good reason to believe this discrimination happens. In a 2014 study, researchers interviewed 264 mostly white, female college students and found that they tended to perceive black children ages 10 and older as "significantly less innocent" than their white counterparts. And as Brent Staples reported for the New York Times, federal investigations have found that schools are more likely to punish black students than white students even when they take part in identical behavior.

These are the types of factors that have driven the ACLU to challenge South Carolina’s law. But beyond South Carolina, the challenge could signal to other states that the rise of criminalization in education is excessive and unnecessary.

The school-to-prison pipeline is a national, racially disparate problem

South Carolina isn't the only state to have this kind of law. Over the past few decades, as lawmakers passed tough-on-crime policies, the idea of a tough approach trickled down to schools across the nation. As a result, schools began to outsource more and more discipline to law enforcement. "School disturbance" laws reflect that: Whereas a teacher would have had to find a way to deal with a disturbance before, he or she can now call on police to do the job.

The result has been a school-to-prison pipeline that acts as many kids' first exposure to the criminal justice system — and it can lead to more interactions with the justice system later on, because the lost school time and bad marks on kids' records can make it much more difficult to get ahead.

But there's also a lot of research and data that shows black kids are much more likely to be affected by schools’ punitive disciplinary policies:

A report from the Justice Policy Institute found schools with school resource officers had nearly five times the rate of arrests for disorderly conduct as schools without school resource officers, even though the prevalence of school resource officers in Justice Policy Institute
  • Even after controlling for poverty, a report from the Justice Policy Institute found schools with school resource officers have nearly five times the rate of arrests for disorderly conduct as schools without school resource officers, even though the prevalence of school resource officers in schools has little relationship to reported crime rates.
  • A study published in Sociology of Education analyzed a data set of more than 60,000 schools in more than 6,000 districts. It found schools with relatively larger minority and poor populations are more likely to implement criminalized disciplinary policies — such as suspensions, expulsions, police referrals, and arrests — and less likely to medicalize students by, for instance, connecting them to psychological or behavioral care.
  • Boys with imprisoned fathers are much less likely to possess the behavioral skills needed to succeed in school by the age of 5, a study published in Sociological Science found. Black children, who are more likely to have imprisoned fathers, are therefore more likely to be set on a bad course before they start kindergarten.
Black students face enormous disparities in school discipline. Center for Intersectionality and Social Policy Studies
  • Black students with disabilities are almost three times as likely to experience out-of-school suspension or expulsion as their white counterparts, and twice as likely to experience in-school suspension or expulsion, according to a report from the National Center for Learning Disabilities.
  • Although black boys face higher rates of school discipline than anyone else, a report from the Center for Intersectionality and Social Policy Studies found black girls are six times as likely to be suspended compared with white girls, while black boys are three times as likely to be suspended compared with white boys.

So schools aren't just more likely to criminalize their students nowadays. They're more likely to criminalize their black students in particular.