The Right to Public Education and the School to Prison Pipeline

The school-to-prison. pipeline is a controversial concept and a disappointing reality. It refers to the draconian disciplinary trend of schools directly referring students to law enforcement or creating conditions under which students are more likely to become involved in the justice system-such as suspending or expelling them. Public schools are intended to primarily be institutions for public education. It is clear that serving as a pipeline to prison is not the central purpose of the public school. The purpose of public education is to provide students an opportunity to develop their capabilities and grow as individuals. Public education is intended to inculcate civic values that will prepare students to function socially and integrate seamlessly into society. However, prison is a place where we send those who demonstrate an inability or unwillingness to adhere to the norms of society, those who have not embraced society\u27s values, and those who have therefore, not successfully integrated into society. School should prepare students for happy, successful, and meaningful lives that are completely unrelated to prison. The school-to-prison pipeline distorts the public education mission by way of a collection of education and public safety policies and practices that push our nation\u27s schoolchildren out of the classroom and into the streets, the juvenile justice system, [and ultimately] the [adult] criminal justice system. As the American Civil Liberties Union (ACLU) has noted: [t]his pipeline reflects the prioritization of incarceration over education. Black children are disproportionately targeted for referral and arrest by police in schools and are inevitably more susceptible to becoming victims of the school-to-prison pipeline. One of the most disturbing consequences of being a victim of the pipeline is that it leads to negative educational and long-term outcomes and, thus, undermines a student\u27s right to public education. Any student funneled into the pipeline is on a path to destruction. The core idea presented in this symposium-inspired piece is that the school-to-prison pipeline undermines the right to public education and must therefore be dismantled. This argument is advanced in three parts. Part I begins by first recognizing that there is a right to public education. That right is a duty-a positive right-that each state has an obligation to enforce pursuant to their state constitutions and the Equal Protection Clause of the U.S. Constitution. Part II defines the school-to-prison pipeline. This part discusses the emergence of zero tolerance policies and the impact of school exclusion and arrest on student education. Part III addresses the disproportionate impact of zero tolerance policies on Black victims and concludes that the school-to-prison pipeline is part of the modern American story of racial oppression

Public Law and Social Human Rights

This paper argues that public education is an international human right that the U.S. ought to recognize and protect. Recognizing a right to public education would correct a major inconsistency in U.S. law by bringing education rights doctrine more in line with international human rights law. This piece discusses how current U.S. education rights doctrine is inconsistent with U.S. tradition and legal precedent. It then demonstrates how international law recognizes public education as a fundamental duty of government before arguing for why the U.S. is obligated to follow international law regarding the right to public education.https://commons.law.famu.edu/faculty-books/1050/thumbnail.jp

Enforcing the Right to Public Education

This paper suggests that although each state within the United States currently recognizes a right to public education, the states do not provide meaningful and consistent judicial enforcement of the right. Recognizing a federal fundamental right to public education would be a step towards ensuring meaningful and consistent judicial enforcement of the right

Freedom from Ignorance: the International Duty to Provide Public Education

This paper argues that public education is an international human right that the U.S. ought to recognise and protect. Recognising a right to public education would correct a major inconsistency in U.S. law by bringing education rights docrtine more in line with international human rights law. This piece discusses how current U.S. education rights doctrine is inconsistent with U.S. tradition and legal precedent. It then demonstrates how international law recognises public education as a fundamental duty of government before arguing for why the U.S. is obligated to follow international law regarding the right to public education

The Real Homeland Security Gaps

This Article reveals the real security gaps in FPS and suggests that the enormous delegation of FPS\u27s vital security functions to private contractors should be treated as an unconstitutional delegation of an inherently governmental function. However, the current constitutional doctrine regarding inherently governmental functions is so weak that even this obvious example of a vital security function that ought to be performed by government fails to satisfy the current constitutional standard for being inherently governmental. Part II presents the FPS federal infrastructure mission and the real homeland security gaps created by post 9/11 policies that have undermined FPS security capabilities. Part II demonstrates that these homeland security gaps outweigh the structural and budgetary concerns that have been used to justify the widespread delegation of federal security to private contractors. Part III analyzes the legal authority for FPS privatization and recognizes that the current excessive privatization and its resulting homeland security gaps is inconsistent with the legislative intent of the DHS Act. Despite Congress\u27s legislative intent, the Department has broad legal authority to privatize under statutory law and this does not violate executive branch policies regarding privatization. Part IV considers the constitutional law concerns that excessive privatization raises and suggests that, despite judicial reluctance to enforce a limit on privatization based on the nondelegation doctrine, limitations should bar privatizing the FPS to the point that homeland security is severely undermined. The privatization of government-here, through the expansive and broad privatization of the FPS security functions undermines our core precepts regarding democratic governance and our constitutional structure

Gun Rights and the New Lochnerism

This Article examines the Supreme Court\u27s recent Second Amendment cases as applications of the same libertarian bias that has undermined constitutional law\u27s fundamental rights doctrine. The concept of a libertarian bias that is based in a New Lochnerism was previously introduced in both The Fifth Freedom and The New Due Process. The analysis here demonstrates that the recently revised doctrine regarding the Second Amendment and gun rights is driven by the current Supreme Court ( Court ) hostility towards government regulation in a manner that is akin to what was seen during the Lochner Era. Regrettably, this Article is timely and is expected to continue to be so in light of ongoing gun violence and mass shootings that continue to plague the United States, including the recent mass shooting in Orlando, Florida. The Court\u27s decisions have cast a long legal shadow, which has resulted in states and the federal government becoming justifiably fearful of running afoul of the Court\u27s latest Second Amendment limitations espoused in District of Columbia. v. Heller and McDonald v. City of Chicago. This is a legitimate fear, given that the current Second Amendment limits are grounded in neither the text of the Constitution nor precedent, which makes it difficult for lawmakers to accurately predict what the Court will next deign to be impermissible. Although not the sole cause of regulatory paralysis in the face of widespread gun violence and mass shootings, the Court\u27s gun rights decisions have certainly contributed to the reluctance of state and federal law makers to pass meaningful gun regulations. The Court\u27s decisions to limit the ability of government to regulate firearms has real consequences that cannot be ignored and should not be dismissed as collateral to individual rights or as in tension with those rights. This Article suggests that public safety is a right; a positive right that is fundamental under the Constitution. This discussion begins in Part II by introducing the Lochner Era and its regulatory goals of protecting liberty, limiting government regulation, and protecting federalism and states\u27 rights. Part III examines how the Court has once again privileged liberty over duty through its radical reinterpretation of the Second Amendment in District of Columbia v. Heller and McDonald v. City of Chicago. The Court has applied its libertarian bias and lost sight of the constitutional duties of government.! In the specific context of the Second Amendment and gun rights, the Court has lost sight of the duty to protect the public safety. Part IV examines the pre-Heller interpretation of the Second Amendment and suggests that this meaning was more consistent with the text of the Constitution, the intent of the founders, and the constitutional duty of government to protect the public safety

A Critique of the Uniquely Adversarial Nature of the U.S. Legal, Economic and Political System and Its Implications for Reinforcing Existing Power Hierarchies

This article argues that the uniquely adversarial nature of the United States litigation system, rooted in the medieval English system of trial by battle, has replicated itself in almost all aspects of American society, distinguishing the United States from even its common law counterparts that shared the genesis of their legal systems in English trial by battle. This trial by battle is often characterized in the context of speech by terms such as the \u27marketplace of ideas, or in the context of economics by terms such as the law of the jungle., Even resolution of basic Constitutional concepts are subject to battles between parties, rather than a proactive determination by a Constitutional Court as can be found in many other legal systems. Thus, American society is unique from all other industrialized nations in the extent to which it employs adversarial techniques to resolve conflicts in the areas of contract law, criminal law, constitutional law, labor law, and economic and social policy, in addition to its legal system. This article suggests that the implications of this emphasis on procedure over substance are profound, and that the shibboleth of procedural fairness invoked to justify disparate substantive outcomes may be more illusory than real