Realizing Restorative Justice: Legal Rules and Standards for School Discipline Reform

64 Pages Posted: 21 Sep 2017 Last revised: 14 Mar 2018

See all articles by Lydia Nussbaum

Lydia Nussbaum

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: February 2018

Abstract

Zero-tolerance school disciplinary policies stunt the future of school children across the United States. These policies, enshrined in state law, prescribe automatic and mandatory suspension, expulsion, and arrest for infractions ranging from minor to serious. Researchers find that zero-tolerance policies disproportionately affect low-income, minority children and correlate with poor academic achievement, high drop-out rates, disaffection and alienation, and greater contact with the criminal justice system, a phenomenon christened the “School-to-Prison Pipeline.”

A promising replacement for this punitive disciplinary regime derives from restorative justice theory and, using a variety of different legal interventions, reform advocates and lawmakers have tried to institute restorative justice as a disciplinary alternative. But, as this Article argues, the resulting legal directives are flawed and, therefore, unlikely to roll back the damage caused by zero-tolerance disciplinary practices. They fail both to account for the ambiguity inherent to restorative justice and to provide clear instructions on how to “build” a restorative school. With the aim of advancing school discipline reform and ending the School-to-Prison Pipeline, this Article employs jurisprudential theory to propose a collection of legal rules and standards that formalize school-based restorative justice and translate it into actionable policy.

Keywords: Restorative Justice, School Discipline, School-to-Prison Pipeline, Zero Tolerance Discipline, Mediation, Community Conference, Family Group Conference, Talking Circle, Peace Circle, Legislation, Institutional Reform Litigation, Regulation

Suggested Citation

Nussbaum, Lydia, Realizing Restorative Justice: Legal Rules and Standards for School Discipline Reform (February 2018). 69 Hastings Law Journal 583 (2018). Available at SSRN: https://ssrn.com/abstract=3039752 or http://dx.doi.org/10.2139/ssrn.3039752

Lydia Nussbaum (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

HOME PAGE: http://law.unlv.edu/faculty/lydia-nussbaum

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