Works-in-Progress Group 7: Juvenile Law

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Group 7: Juvenile Law 

The Power to Expel  

Diana Newmark, Univ. of Arizona 

Courts and policymakers agree that public schools should have the power to exclude misbehaving students. Some scholars and advocates criticize the use of this power, arguing against the overreliance on long-term suspensions and expulsions for a host of reasons, including racial disparities in school discipline, the inefficacy of suspensions and expulsions as a teaching tool, and the long-term impact these measures have on students. Scholars also argue—and some courts agree—that a student’s right to procedural and substantive due process, or a student’s state-based constitutional right to an education, limits a public school’s power to impose long-term exclusions from school. But it is generally assumed that schools should be able to suspend and expel children, at least for serious violations of a school’s discipline code. 

This Article is a structural critique of the current power structure. Even if a long-term exclusion from a particular school can be justified in a particular instance, this Article argues that, as currently conceived, school discipline law fails to recognize the state’s interest in ensuring all children are educated and socialized, while also failing to protect the individual child’s interest in getting an education. This is true even when the misbehavior is serious, such as when weapons or drugs are involved. Ultimately, this Article concludes that schools and school districts should not be able to expel students unilaterally, because the school’s incentives are systematically misaligned with both the child’s and the state’s interest in ensuring that all children have access to public education.  

Too Small for their Breaches 

Sarah Branch, University of Maine  

The article will analyze the practice of the juvenile delinquency system’s ubiquitous and ineffective use of written contracts (aka “conditions of release” or bail) to curtail and control youth behavior. I start this conversation in Maine, due to a particularly egregious practice here of executing contracts with children of any age and without a defense attorney or Judge involved (and without a guardian). The article will use the lens of an 11-year-old client that student attorneys at the Youth Justice Clinic represented to explain the basic concepts at play in the article. I will evaluate Maine’s practice of the state contracting with children by leveraging incarceration for compliance and both the constitutionality and legality of this practice. I will connect what Maine does to a larger conversation about the rotting/racist/rough underpinnings of the juvenile system. I will highlight that these contracts, and the system's responses to youth behavior, are often merely a pro-forma non-specific list of what the child is not allowed to do based on fear, regardless of the circumstances of the child. In the end, I hope to make short term and long terms suggestions for pre-trial contracts/bail so that we can move forward, towards a system that realizes its true goals of supporting children and their families to ensure public safety and healthy children.