Exiled from Education: Plyler v. Doe’s Impact on the Constitutionality of Long-Term Suspensions and Expulsions

Tunette was a problem student herself, preschool through high school graduation. . . . She remembers being bad. She flipped over a desk in class one time. That happened. But she also remembers that, after getting suspended in preschool, she walked into kindergarten fully convinced the teacher was the enemy. And that never went away. All those times she was suspended, she didn’t come back less angry, ready to obediently follow directions. It was the opposite. Tunette says, ‘I went into kindergarten knowing I was bad. I went into first grade knowing I was terrible. And it just went up from there.’

For students like Tunette, receiving a quality public education is rarely easy. Being poor, speaking another language, and misbehaving all increase the costs of education and provide incentives for schools to exclude students entirely. The Supreme Court issued one potential impediment to schools’ policy of exclusion over thirty years ago in Plyler v. Doe, applying heightened scrutiny to invalidate a Texas law that kept undocumented students out of public schools. The Court’s reasoning suggested the existence of a plausible right of equal access to education under the United States Constitution. Since then, states have attempted to limit this potential right in myriad ways. In some cases, states have gone so far as to directly attack it, passing draconian laws that ban undocumented students from school. For example, in 1994, California voters passed Proposition 187, making it illegal for undocumented students to attend public school. Similarly, in 2011, Alabama passed H.B. 56, requiring parents to report the immigration status of their school-aged children. These laws discouraged parents, fearful of deportation, from sending their children to school. While the exclusion of undocumented students in particular has garnered widespread media coverage, it is far from the only example of school exclusion going on in the United States today. In fact, the hidden excommunication of millions of students who misbehave in classrooms every year gets almost no media attention at all. But it should.

Prior to the 1990s, school districts utilized suspensions and expulsions as a way to address only the most serious offenses, as well as to provide consequences for repeat offenders. Since then, school districts around the country have adopted zero-tolerance policies that “impose[] expulsion or suspension [as a mandatory sanction] for a wide range of . . . conduct,” including trivial offenses such as disrupting class. As a result, by the 2005–2006 school year, more than 3.3 million students were suspended at least once, while over 100,000 students were expelled.

The purported goal of such policies is to maintain the integrity of the learning environment (by, for example, ensuring school safety and protecting academic outcomes for other students) by removing poorly behaved students from class. However, data from the past three decades has demonstrated that such policies are ineffective at achieving either school safety or academic success. For example, throughout the 1980s, 1990s, and early 2000s, school crime rates remained stable, even though suspension rates doubled during the same time period. In other words, school suspensions did not have the effect of increasing school safety. In addition, recent research has found that “a negative relationship [exists] between the use of school suspension and expulsion and school-wide academic achievement, even when controlling for . . . socioeconomic status.” This means that students suffer from poor academic performance at schools with high suspension and expulsion rates. Based on this data, harsh disciplinary policies accomplish little and fail to improve either safety or academic achievement on a school-wide level.

This Note will argue that, following Plyler, public school students have a plausible right of equal access to education under the United States Constitution. In addition to this right, students also benefit from a fundamental right to education in sixteen states. This framework has thus far provided students with some respite from states’ attempts to limit Plyler. However, in states where the right to education is not fundamental, or the status of education has not yet been determined by state supreme courts, school districts regularly violate students’ plausible right of equal access to education in two ways. First, school districts offer no alternative education programs (“AEPs”) during periods of long-term suspension or expulsion. Second, when school districts do offer AEPs, they routinely fail to provide even basic education, which places students at risk of academic failure. Ultimately, long-term suspensions and expulsions mean that many of our nation’s most vulnerable students are not receiving an education. However, as this Note will argue, our federal and state constitutions suggest that they are entitled to one.

In the legal field, little has been written about the implications of Plyler outside the context of undocumented students. The analyses that do exist focus on state and local attempts to limit the rights of undocumented students to attend primary and secondary school. Other studies analyze the limits to higher education that undocumented students face in terms of college admissions and in-state tuition rates. This Note differentiates itself from what the legal field already knows by focusing instead on the interplay between federal and state law to determine how students’ plausible right of equal access to education has been limited in other contexts, specifically school discipline. Such knowledge is worthwhile because it may permit a better understanding of exactly how child advocates can protect their most vulnerable clients from being shut out of the education system altogether. Equipped with this knowledge, school districts can be held accountable for educating all students, even the most behaviorally challenged ones.

To support these claims, this Note will proceed in three parts. Part I will explain the existence of any rights to education in the United States by outlining where possible rights are protected under federal and state law. In Part II, this Note will argue that students who are long-term suspended or expelled are deprived of their rights when states fail to create AEPs at all, or when states provide low-quality AEPs that do not even offer a basic education. Finally, Part III will address the typical school defense that students who misbehave forfeit their right to education.