Developmental Due Process: Waging a Constitutional Campaign to Align School Discipline with Developmental Knowledge
Volume 82, No. 4, Winter 2009
By Josie Foehrenbach Brown [PDF]

Public schools are critical sites in children’s legal socialization. Serving close to ninety percent of our country’s elementary and secondary students, public schools imprint better and worse versions of the Constitution-in-practice on children’s nascent legal consciousness. The administration of school discipline is the American child’s likely first introduction of the government’s implementation of law and order, and, regrettably, the question of what the Constitution demands in this context has received too little sustained attention.

Since the Supreme Court articulated a minimum of constitutionally required process in school suspension proceedings in Goss v. Lopez in 1975 and rejected an Eighth Amendment challenge to the imposition of corporal punishment in school in Ingraham v. Wright in 1977, the Court has not squarely revisited the question of what due process demands in the domain of school discipline. However, in a variety of school cases members of the Court have repeatedly posited a characterization of the relationship between child and school officials as one marked not by adversariness but only by benevolence. This description seems sadly anachronistic with the ascendance of zero tolerance approaches and the increasingly prevalent use of the juvenile criminal justice system to address student misbehavior at school.

More recently, outside the school context, in Roper v. Simmons, the Supreme Court illuminated a potential developmental dimension to the due process inquiry as it assessed the constitutionality of imposing the death penalty on adolescents. Informed by an already extensive body of psychological observations as well as by the growing scientific literature on how the processes of adolescent brain development often significantly compromise teens’ decision-making capacities, the Roper majority identified adolescent deficits in the ability to assess consequences and to control their behavior as a predicate for invalidating juvenile death penalty statutes. Roper’s implicit recognition of the specific attention required by the distinct character of a child’s constitutional claim has enormous constructive potential in other conflicts between child and state.

This Article examines the potential transferability of Roper’s recognition of the relevance of developmental psychology and neurobiology to a constitutional assessment of prevalent school disciplinary practices. It proceeds in six parts. Part I examines the Roper decision and its acknowledgment of the constitutional relevance of developmental psychology and neurobiology to appraisals of the fairness of the punishment of youth. This section charts how advocates laid the legal and scientific groundwork for Roper’s result, provides a review of the growing body of medical literature on adolescent brain development and its behavioral implications, and documents Roper’s migrating influence as a developmentally sensitive approach to the handling of youthful offenders has gained currency among legal scholars.

Prior to addressing how a constitutional argument for school discipline reform could be constructed, Part II surveys the historical antecedents of contemporary calls for school discipline reform and identifies the analytical components of earlier school disciplinary reform efforts. Further, Part II assesses the perceived and actual shortcomings of prior reforms in order to explain the necessity of examining the substantive content of disciplinary practices rather than scrutinizing only the procedural facets of disciplinary protocols. Part III demonstrates the timeliness of Roper’s arrival in an era in which school disciplinary policies have become increasingly punitive and rigid. These changes represent school officials’ response to public fears about potentially deadly school violence and to legally imposed performance requirements that heighten the perceived urgency of eliminating disciplinary situations that compromise the learning environment. Schools’ use of zero tolerance policies as a response to a wide spectrum of student behavior has drawn mounting opposition. Critics have identified significant tension between such practices and basic principles of fairness while also casting doubt on the educational effectiveness of such approaches. Recently, groups such as the National Institute of Child Health and Human Development, the National Association for the Accreditation of Teacher Education, and the American Psychological Association have joined the chorus of criticism, urging that school disciplinary practices be aligned with the current knowledge about child and adolescent development.

Using Roper as an analytical springboard, Part IV attempts to fashion a new theoretical engine for the constitutional appraisal of school disciplinary policies and practices. To define what the constitutional trajectory of school discipline policy and practice should be, this Article revisits the work of seminal theorists who have examined both the nature of administrative due process generally and the application of due process norms to schools in particular, exploring how the enforcement of adherence to due process principles in the administration of government programs simultaneously advances instrumental and dignitary objectives. Having demonstrated that current disciplinary practices in many public schools are not anchored in the best available knowledge about the behavioral implications of child and adolescent brain development, this Article contends that the assertion that educators need autonomy and consequently deserve deference in the realm of school discipline unwisely elides an appropriately rigorous examination of whether such deference has been earned. Instead, this Article contends that such institutional departures from relevant professional and scientific norms should be treated as prima facie evidence that the demands of due process are not satisfied. Aware that this Article argues for the invocation of a variant of perennially disquieting and often amorphous substantive due process analysis, it seeks to deflect the familiar and often legitimate critiques of this mode of constitutional argument by weaving together theoretical recommendations for the reorientation of substantive due process analysis and connecting my argument to the techniques of faithful but modernizing constitutional interpretation proffered by leading constitutional theorists.

Part V explores the strategic implementation of due process theorizing. My approach incorporates the growing awareness among academic commentators that constitutionally grounded institutional reforms may often be most effectively pursued by campaigning for internally generated and voluntarily adopted program modifications rather than relying exclusively or predominantly on externally imposed change. Although this Article does not exclude the utility of litigation as one productive dimension of a reform strategy, it recognizes the limitations of such an approach and therefore emphasizes a course that concentrates on generating a consciousness of what due process demands among educators within schools, capitalizing on a policy trend that can already be detected in several major school systems. By documenting that developmentally calibrated school discipline alternatives are available and in use, this Article sets the stage for the first wave of advocacy for developmentally appropriate discipline reform aimed at school systems, legislative bodies, and the public. This Article also explains how such an advocacy campaign can represent an exercise in democratic constitutionalism, the effort by nonjudicial actors to illuminate the content and implications of constitutional principles.

To underscore the importance of the reform enterprise, Part VI incorporates the insights from scholarship examining youths’ legal socialization through encounters with the criminal justice system and addresses the connection between children’s school disciplinary experience and their sense of both the legitimacy of law and their place with the legal order. The over-utilization of disciplinary strategies that remove children from school while overlooking the causes of their behaviors cannot be reconciled with either schools’ functional objectives or their normative commitments. If uncorrected, such an approach threatens to alienate the targeted youth from governmental authority and to deflate their faith in constitutional values. This Article seeks to chart a path away from such a future.

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