Thursday, April 8, 2021
Amber Baylor (Texas A&M University School of Law) has posted an abstract of Criminalized Students, Reparations, and the Limits of Prospective Reform (Washington University Law Review, Vol. 99, 2022) on SSRN. Here is the abstract:
Recent reforms discourage schools from referring students to criminal law enforcement for typical disciplinary infractions. Though rightly celebrated, these reforms remain mere half-measures, as they emphasize prospective decriminalization of student conduct without grappling with the harm to generations of former students—disproportionately Black —who have been targeted by criminalizing policies of the past. Through the lens of reparations theory, this Article sets out the case for retroactive and reparations-based redress for the criminalization of students. Reparations models reposition moral norms. They acknowledge state harm, clarify the losses to criminalized students, allow for expansive forms of redress, and cast restoration of opportunity as a project to benefit society broadly.
As families have long protested, and data corroborates, schools’ reliance on criminal law mechanisms has significant impacts. Reforms many places reconsider practices of prosecuting students under order-related misdemeanors, such as “disruption of class” and “disorderly conduct.” Some reforms lead to policymakers striking or altering criminal law statutes and imposing procedural protections. Reducing criminal law’s footprint in schools helps protect future students from the resulting harms of criminalization. Former students still face open cases, warrants, and criminal debt. Many individuals navigate criminal records, health impacts from the trauma of criminal law enforcement in school, and loss of access to educational and other public institutions. These impacts reverberate generationally in communities where schools enforce criminalizing policies. These continuing impacts indicate the limits of prospective reforms.
This Article argues that transformation of systems that harm and criminalize students requires both retroactive decriminalization and reparations-based policies. The burden of overcoming criminalization continues to rest with former students rather than the state. Repair of criminalization must incorporate accountability and redress. The Article offers models towards restoration of stolen opportunity.