give-and-take between administrators and students,35 severe discipline, such as lengthier
suspensions and lower tolerance for expulsion, has been on the rise for a number of years.36
According to the U.S. Department of Education, 3.5 million students are suspended in the U.S. per
year.37 Suspension rates have doubled since the 1970s when Goss was decided.38 As one
congressman put it, a fight in the schoolyard that at one time would have warranted a visit to the
principal’s office, may now lead to exclusion from school and possibly referral to the juvenile
justice system.39 The use of police, security cameras, and criminal justice methods has contributed
to the increase in adversarial posturing in school discipline controversies.40 A possible explanation
for the rise in school discipline occurrences is the trend toward zero tolerance policies—
disciplinary provisions that mandate substantial consequences for a varying degree of behavior.41
The vagueness of disciplinary offenses in such policies afford administrators wide discretion,
creating a space for potential racial animus to thrive undetected.42
B. The High Stakes of School Exclusion
“The significance of suspension and expulsion has . . . grown to the point where they are
more appropriately understood as educational death penalties than as corrective or management
tools.”43 Research shows that the stakes are high for students facing long-term suspension or
expulsion, suggesting that the balancing scheme used by the federal courts starts out from an
Best, Note, Derailing the Schoolhouse-to-Jailhouse Track: Title VI and a New Approach to Disparate Impact Analysis
in Public Education, 99 GEO. L. J. 1671, 1676 (2011) (school suspensions have nearly doubled since the 1970s and
trends show the increasing use of criminal justice tactics in addressing disciplinary issues); see generally Dean Hill
Rivkin, Legal Advocacy and Education Reform: Litigating School Exclusion, 75 TENN. L. REV. 265 (2008).
35 See Black, supra note 17, at 845 (Goss implicitly assumed a benign relationship between administrators and
students); Larry Bartlett & James McCullagh, Exclusion from the Education Process in the Public Schools: What
Process is Now Due, 1993 B.Y.U. EDUC. & L. J. 1, 24 (1993) (“the Court appears to presume . . . that school
disciplinarians will proceed in good faith”).
36 See generally Aaron Sussman, Learning in Lockdown: School Police, Race, and the Limits of Law, 59 UCLA L.
REV. 788 (2012); Daniel J. Losen & Tia Elena Martinez, Out of School and Off-Track: The Overuse of Suspensions
in American Middle and High Schools, THE CIV. RTS. PROJECT, 8-9 (Apr. 3, 2013),
OffTrack_UCLA_4-8.pdf (suspension rates have increased at nearly every level, age, and racial group, with
suspension rates among African-American students rising significantly more over time than any other racial group).
37 Press Release, U.S. Dep’t of Educ., Statement from U.S. Dep’t of Educ. Sec’y Arne Duncan on Student Discipline
and Civil Rights (Oct. 30, 2015), available at
38 See Best, supra note 34, at 1676.
39 Ending the School to Prison Pipeline: Hearing Before the Sen. Comm. on Judiciary, 112th Cong. 848, 1, 113 (2012),
available at https://www.gpo.gov/fdsys/pkg/CHRG-112shrg86166/pdf/CHRG-112shrg86166.pdf [hereinafter School
to Prison Pipeline].
40 See Sussman, supra note 36, at 816–17.
41 Daniel J. Losen & Russell J. Skiba, Suspended Education: Urban Middle Schools in Crisis, THE CIV. RTS. PROJECT,
2 (2010), http://civilrightsproject.ucla.edu/research/k-12-education/school-discipline/suspended-education-urban-
middle-schools-in-crisis/Suspended-Education_FINAL-2.pdf [hereinafter Urban Middle Schools].
42 Abundant persuasive commentary exists raising problematic issues associated with vague code of conduct
provisions. See, e.g., Best, supra note 34, at 1676; Brooke Grona, Comment, School Discipline: What Process is Due,
What Process is Deserved?, 27 AM. J. CRIM. L. 233, 241–44 (2000); see generally Jason J. Bach, Students Have
Rights, Too: The Drafting of Student Conduct Codes, 2003 B.Y.U. EDUC. & L.J. 1 (2003).
43 See Black, supra note 17, at 833.