This article was prepared by Litigation Support List (LST) Member Elie Zwiebel.
The school to prison pipeline wreaks havoc on our clients by criminalizing conduct part and parcel to being young and by disparately targeting students of color, students with disabilities, and students who identify as LGBTQ. According to the Colorado Division of Criminal Justice, in 2019, 5% of students across our state identified as Black or African American; but 10% of students referred to law-enforcement at school were Black or African American. Students who identified as White constitute 59% of the student body and 52% of the students who were referred to law enforcement at school. Hispanic and Latinx students as well as Indigenous and Native students experienced a similar disproportionate rate of referral to law enforcement at school. Implicit bias and systemic racism at school directly lead to students of color having disproportionate contact with the criminal and delinquency systems for no other reason than race or color.
The school to prison pipeline wreaks havoc on our clients by criminalizing conduct part and parcel to being young and by disparately targeting students of color, students with disabilities, and students who identify as LGBTQ. According to the Colorado Division of Criminal Justice, in 2019, 5% of students across our state identified as Black or African American; but 10% of students referred to law-enforcement at school were Black or African American. Students who identified as White constitute 59% of the student body and 52% of the students who were referred to law enforcement at school. Hispanic and Latinx students as well as Indigenous and Native students experienced a similar disproportionate rate of referral to law enforcement at school. Implicit bias and systemic racism at school directly lead to students of color having disproportionate contact with the criminal and delinquency systems for no other reason than race or color.
When schools are not referring students to law enforcement, schools in Colorado have an alarming amount of discretion to expel students for nonviolent and low-level conduct that would be better addressed by education and services than expulsion and alienation. According to the Colorado Department of Education, in 2019 22% of expulsions were for marijuana violations, 19% were for nonviolent “detrimental behavior,” 11% were for other drug violations (including possession of paraphernalia), 8% were for nonviolent “disobedience/defiance or repeated interference,” 2.5% were for alcohol violations, ~1% were for tobacco violations, and ~1% were for destruction of school property. This means that the vast majority of expulsions were for nonviolent issues. These are instances wherein students would likely benefit from trauma-informed, and service-based interventions or restorative justice. Instead, these students were deprived of services and received a reduction in professional support.
In short, the school to prison pipeline is flowing with fortitude in Colorado.
According to Colo. Rev. Stat. 22-33-105, schools have, at most, 25 days to hold an expulsion hearing. Schools are not required to hold such a hearing (unless one is requested); schools are not required to wait the full 25 days to hold an expulsion hearing. The result is expulsions being processed quickly and often before a defense team is assembled.
GALs can play a significant role in slowing if not stopping this seemingly insurmountable systemic injustice. Often, GALs are on the front lines: You have access to key records as well as knowledge of your client’s history, you have spent months if not years forging relationships with key players in your client’s life, and you have training and experience in navigating the complex intersection of service gaps and community resources. You are an invaluable resource to keeping students in school and connected to the best opportunity available for beneficial growth and development.
With this in mind, here are recommended steps you can take to fight an expulsion:
1. Meet with client to review the school’s allegations;
2. Meet with parents, social workers, and others involved with your client;
3. If your client has an Individualized Education Program (IEP), request a Manifestation Determination Review; or, if you suspect your client should have an IEP, request an eligibility assessment before proceeding with the expulsion;
4. Ensure your client continues to receive schoolwork during the period when expulsion is pending;
5. Inform the principal/school that you are requesting and plan to attend an expulsion hearing;
6. Get the expulsion packet (a packet of information that will be presented by the school district and against your client at the expulsion hearing);
7. Review C.R.S. 22-33-105, -106 and the school district’s discipline codes and policies;
8. Coordinate with your client’s defense attorney (if relevant);
9. Get reference letters from coaches, counselors, ministers, youth group leaders, teac
hers, etc.;
10. Deliver mitigation to the hearing officer and the school district;
11. Advise your client about 5th amendment issues (if relevant);
12. Prepare direct and cross examination for the expulsion hearing;
13. Fight tenaciously for your client at the hearing (while you can create a record through objections, do not expect the hearing officer to bar evidence based on these objections).
Because of the broad discretion to expel in Colorado, your client will more likely than not be expelled after a hearing. You can appeal the expulsion to the district’s board of education and then to a local district juvenile court, but, again, the broad discretion and vague language built into Colorado school discipline law make the standards for overturning an expulsion exceptionally difficult to meet.
You have back-up, though! As Colorado Juvenile Defender Center’s Education First Program Director, I regularly work with GALs to fight expulsions. Along with other educational experts who work with OCR, CJDC and I can support your work or even help defend your client against harsh school discipline.
The school to prison pipeline may be alive and well in Colorado, but you as GALs have the resources, access, and skills at your fingertips to advocate for your clients and to draw attention to the systemic injustice that disproportionately harms them.
