Jason P. Nance, Student Surveillance, Racial Inequalities, and Implicit Racial Bias, 66 Emory Law Journal 765 - 837 (2017) (443 Footnotes Omitted) (Full Document)
More than sixty years after the landmark decision in Brown v. Board of Education, stark racial inequalities persist in our public education system. The disparate treatment of minority students has been documented repeatedly in almost all areas of public education. For example, it is more common for students of color, especially low-income students of color, to be in overcrowded classrooms, attend schools in deplorable physical condition, and be taught by educators who are less experienced, less credentialed, and lower paid. They are more likely to be suspended, expelled, referred to law *768 enforcement, or subject to a school-based arrest than similarly situated white students. They have less access to counselors, gifted and talented programs, music and art curricula, project-based science classes, extra-curricular activities, and higher-level science and mathematics courses. Further, they are more likely to learn in segregated environments that have lower levels of peer group competition and support.
Another racial inequality that has received much less attention, but still deserves our consideration, is the disparate use of strict security measures in schools serving primarily students of color. Strict security measures, for purposes of this Article, include practices such as relying on law enforcement officers to monitor and discipline students; using metal detectors (either hand-held or walk-through); performing random searches of students' personal belongings, lockers, or persons; controlling access to school campuses by locking or monitoring gates; and using surveillance cameras. All school officials monitor (and should monitor) their students to some degree. Indeed, among school officials' most important responsibilities are keeping students safe and promoting an orderly climate conducive to learning. However, there comes a point where monitoring students no longer enhances the learning *769 environment, but impedes it, especially when school officials rely on a combination of the strict security measures listed above, which can create an intense surveillance environment.
In fact, for many students, particularly students attending schools where the majority of students are students of color, school too often resembles a prison. For example, Minerva Dickson, a New York high school student, recently described her everyday school experience in this fashion. Every morning when Minerva arrived at school, she waited in a long line to swipe her identification card through a machine. If the machine recognized the card, it beeped and flashed a green light. If it did not, the machine made a loud buzzing sound and flashed a red light. Once she cleared the machine, she was funneled toward fully-uniformed police officers who had handcuffs dangling from their belts. Each day, while the school safety agents watched her, she had to remove her shoes, jewelry, and hairpins. She would place her purse and backpack on a conveyer belt and wait for an agent to signal her to come forward. She then would spread her arms and legs as another agent ran a metal detector wand around her frame. Finally, she would be permitted to put on her shoes, collect her belongings, and hurry to her first class. When asked how she felt about this security process, she replied, “[t]hey treated us like criminals. It made me hate school. When you cage up students like that it doesn't make us safe, it makes things worse.”
Another example of this phenomenon comes from Edward Ward, an honor roll student at DePaul University, who also described the conditions of his high school as prison-like in his testimony to a U.S. Senate Committee. Edward attended high school on the west side of Chicago, where 90% of the students *770 were low-income, and all of the students were students of color. He stated that
[f]rom the moment we stepped through the doors in the morning, we were faced with metal detectors, x-ray machines and uniformed security. Upon entering the school, it was like we stepped into a prison. ... [T]he halls were full with school security officers whose only purpose seemed to be to serve students with detentions or suspensions.
Because of this tense surveillance environment and the way the school police officers treated him and his fellow students, he testified that he “could slowly see the determination to get an education fade from the faces of [his] peers because they were convinced that they no longer mattered .... [T]he last thing that would work is to place them in institutions of confinement and control.”
Similarly, at a New Orleans high school, students each morning passed through metal detectors monitored by a police officer and several security guards. Those guards scanned each student individually with a hand-held metal detector and rummaged through students' personal bags. If guards discovered cell phones, oversized jewelry, or belts with certain buckles, then they confiscated them. Students who triggered the metal detector three times after the police could not find any metal items were sometimes sent home. On certain days, students who were not in a classroom by 9:00 a.m. were locked out of the classrooms, swept into an auditorium by an army of guards monitoring the hallway, and then suspended.
An intense surveillance environment can exist in any kind of school. However, empirical research shows that schools where the majority of students are students of color are more likely to rely on various combinations of strict *771 security measures than schools serving primarily white students. Critically, these racial disparities remain even after taking into account other factors that might explain why schools decide to rely on strict security measures, such as neighborhood crime, school crime, and school disorder. This weakens the argument that such disparities exist solely because of safety concerns. Instead, these studies support the conclusion that other factors, such as implicit racial bias, may to some degree influence school officials' decisions to implement these measures. In fact, implicit racial bias may explain how some school officials can act in good faith (i.e., by not making decisions based on overt discriminatory intent), but still unconsciously perpetuate racial inequalities in the public school system by making adverse decisions based on unconscious stereotypes and attitudes toward students of color.
The problems associated with intense surveillance environments are at least two-fold. First, research suggests that the use of strict security measures to maintain order and control may contribute to the formation of poor and dysfunctional learning climates, which means that students of color may often have learning opportunities inferior to those of other students. Second, strict security measures often are a component of a larger, more complex phenomenon frequently referred to as the “school-to-prison pipeline.” The school-to-prison pipeline is a metaphor used to describe the intersection of the K-12 public school system and the criminal justice system. It denotes the practice of referring students to law enforcement for committing certain offenses while at school or creating conditions whereby students are more likely to become involved with law enforcement and the juvenile justice *772 system, such as by suspending or expelling them. Many school officials rely on strict security measures in conjunction with other punitive discipline policies, such as zero-tolerance policies, to maintain order in their schools. Such practices end up pushing more students out of school, especially low-performing students, thereby increasing the likelihood that those students will become involved in the justice system. Empirical research shows that these harsh policies disproportionately affect minority students, contributing to the vast inequalities that exist in our education and justice systems.
This Article contributes to the literature on education law, education policy, and racial inequalities in the following manner. First, it presents empirical data on school surveillance practices, including an original analysis of restricted data recently released by the U.S. Department of Education after the shootings at Sandy Hook Elementary School, which show that schools serving primarily students of color are more likely to rely on intense surveillance methods than other schools. These data also reveal that racial disparities remain even after controlling for other factors that might explain the use of strict security measures, such as neighborhood crime and the levels of crime and disorder that exist in schools, weakening the theory that legitimate safety concerns justify these observed racial disparities. Second, this Article discusses the role that implicit racial bias may have in school officials' decisions to implement intense surveillance methods. Third, this Article proposes legislation and *773 strategies that federal lawmakers, state lawmakers, and school officials should adopt to counteract the effect of implicit racial bias on school officials' decisions to implement strict security measures (and other decisions they make). Implementing these recommendations will help create better learning climates that benefit students of all races.
This Article proceeds in five parts.
Part I describes recent movements in the law and other phenomena that have motivated school officials to increasingly rely on strict security measures to monitor students and maintain order in their schools.
Part II discusses the educational and sociological harms to students that result from overusing strict security measures in schools, particularly when school officials choose to adopt those measures based on illegitimate criteria such as race (either consciously or unconsciously).
Part III presents the results of several empirical analyses revealing the disparate use of strict security measures along racial lines, including an original empirical analysis of recent, restricted data that the U.S. Department of Education released after the Sandy Hook shootings.
Part IV discusses the concept of implicit racial bias and its possible influence on school officials' decisions to rely on intense surveillance methods.
Finally, Part V proposes legislation and strategies for federal lawmakers, state lawmakers, and school officials to adopt to address the negative trends the empirical analyses reveal, including measures to counteract the effect of implicit racial bias on school officials' decisions to implement strict security measures.
Associate Professor of Law, University of Florida Levin College of Law. J.D., University of Pennsylvania Law School; Ph.D., M.A., Educational Administration, The Ohio State University.