For the past several years, Wisconsin has ranked near the top of the country for racial disparity in nearly every category related to the juvenile justice system.¹

State and national trends also support that there is a particular group of youth of color that are uniquely susceptible to involvement in the juvenile justice system: those who have a disability. Nationally, children with disabilities are removed from school and referred to and involved in the juvenile justice system at higher rates than youth without disabilities. Disproportionality for these children applies at each stage of the juvenile system process, from referral to charging to disposition and, ultimately, placement in detention and incarceration.²

When one applies the lens of both race and disability, a disturbing pattern of compounded disparity emerges. These children and their families often need to navigate a maze of siloed systems: the school system, the juvenile justice system, the mental health care system, and the health care system. These children are more likely to fall into gaps in services and sometimes, the juvenile justice system can be seen as a last resort to provide needed services to a complex population. However, national research and advocacy shows us that this population need not be “incarcerated by default.”³

While there has been recent investigation into racial and ethnic disparities in the juvenile justice system in Wisconsin and beyond,⁴ there is a scarcity of data, research, and analysis specifically applicable to this intersectional group of children: children of color and with disabilities – one of the most vulnerable populations that interact with the justice system. What does the school to prison pipeline look like for these children, especially in Wisconsin?

The Impact on Children of Color with Disabilities in Wisconsin

The school to prison pipeline is a metaphor often used to describe the pathway that brings children from involvement in school discipline to removal from school through suspensions or expulsions to law enforcement referrals to justice system involvement, which ultimately can result in incarceration in the juvenile and adult criminal justice systems.⁵

This pathway is complex but remains entrenched in the American school and judicial systems. Once on this pathway, it becomes more and more difficult for children to remove themselves and ultimately to grow and be successful.

This pathway is especially detrimental to children who are dealing with multiple levels of disproportionality. The American Bar Association described the school to prison pipeline and its power on children as coming:

from low expectations and engagement, poor or lacking school relationships, low academic achievement, incorrect referral or categorization in special education, and overly harsh discipline, including suspension, expulsion, referral to law enforcement, arrest, and treatment in the juvenile justice system.⁶

National Trends

According to the U.S. Department of Education Office for Civil Rights, “disproportionality manifests itself all along the educational pipeline from preschool to juvenile justice and even to adult prison for students of color, for students with disabilities, for LGBTQ students, for other groups in particular settings.”⁷

Disparities manifest themselves for children of color and children with disabilities in strikingly similar ways, so they are magnified for children who fall in both categories. Children of color are:

• “disproportionately lower achievers and unable to read at basic or above;
• damaged by lower expectations and lack of engagement;
• retained in grade or excluded because of high stakes testing;
• subject to more frequent and harsher punishment;
• placed in alternative disciplinary schools or settings;
• referred to law enforcement or subject to school-related arrest;
• pushed or dropping out of school;
• failing to graduate from high school;
• feel threatened at school and suffer consequences as victims.”⁸

The same data shows that students with disabilities are “disproportionately students of color.”⁹ Students with disabilities are also:

• “less likely to be academically proficient;
• are disproportionately disciplined;
• “more likely to be placed in alternative disciplinary schools or settings or otherwise;
• more likely to spend time out of the regular classroom to be secluded or restrained;
• referred to law enforcement or subject to school-related arrest and incarceration.”¹⁰

In its most recent publications, the Office of Civil Rights confirms that students with disabilities and students of color were overrepresented in referrals to law enforcement and school-related arrests.¹¹

State Trends

In late 2022 in this blog, I wrote about the stark disparities that impact youth of color who become involved in the juvenile justice system in Wisconsin. Since then, Wisconsin has continued to arrest, refer, and charge youth of color at rates disproportionate to their white counterparts.

In fact, in the most recent report from the Wisconsin Department of Children and Families (DCF), it was clear that “Black and Native American youth are overrepresented among youth referred” to the juvenile justice system, “continuing a trend that has persisted since 2019.” In addition, school-based offenses that were referred to youth justice grew slightly in 2022. Black and Native American youth in Wisconsin are referred for delinquency charges “at rates significantly higher than the state’s average,” and the rate of Native American youth referred for delinquency jumped by 25% in 2022. Finally, over half of all Black and Asian youth were recommended for a formal delinquency petition and this is “much higher than the state’s average.”¹²

Wisconsin’s DCF data does not describe referrals and justice involvement according to disability, or those children who would fit in both categories. However, a review of the national civil rights data regarding law enforcement involvement at schools in Wisconsin shows that the multiple levels of disparities apply in this state and are troublingly high:

In Wisconsin, students with disabilities and students of color also bore the brunt of school policing. In 2017-18, Wisconsin was more likely than any other state to refer Native students to law enforcement, reporting a rate over three times higher than the rate of referral for their white peers.¹³

In addition, the Wisconsin Department of Corrections, which supervises youth placed at Lincoln Hills and Copper Lake, said in a 2023 State Legislative Fiscal Bureau report that:

a high proportion of students enter the juvenile justice system with a history of special education needs, such as cognitive disabilities, learning disabilities, emotional behavioral disabilities, speech and language disabilities, and visual or hearing impairments. During 2021-22, approximately 54.5% of Lincoln Hills students and 75% of Copper Lake students participated in special education programming compared to a statewide participation level of 14%.¹⁴

Because we know that that Black youth were at least 10 times more likely to be held in a correctional placement in 2021,¹⁵ it stands to reason that the incarcerated youth in Wisconsin are disproportionately both children of color and children with disabilities, and that fits within the pattern of disproportionality from the beginning to the end of the pipeline.

Intersectionality as a Lens

Intersectionality, a term coined by Kimberlé Crenshaw in 1989, is a methodology that recognizes an individual’s multiple levels of identity and recognizes the complexities that multiple areas of disproportionality can apply toward one person.

The concept of intersectionality focuses on “both the interaction between different characteristics, identities or factors such as gender, race, age … and others and also the resulting impact on power dynamics and relationships for individuals who may be disadvantaged by being members of several oppressed groups.”¹⁶

Here, juvenile justice stakeholders can be tempted to view each child as an individual characteristic. We may see a child of color, a child with a disability, a child with an IEP, or a child involved in the juvenile justice system; intersectionality encourages us to view each child as the many identities they carry to best address disparate treatment of youth. This falls in line with the goals of the juvenile justice system under the purposes of the Juvenile Justice Code.¹⁷

Seeing a justice-involved child as a whole child can help us to identify concerns and strengths¹⁸ earlier in the process and can help us to divert the child from the pipeline at multiple junctures.

Exposing the Myths

As we begin to address the complexities of the school to prison pipeline in Wisconsin, it is important to question the misconceptions that can mislead well-meaning justice system professionals.

First, one might think that children of color and children with disabilities face disparate involvement in the delinquency system because they are more likely to engage in bad or delinquent behavior.

The research disproves this. The Department of Education’s Office of Civil Rights has found that “discipline and other disparities are based on race and cannot be explained by more frequent or serious misbehavior by minority students.”¹⁹ In fact, children of color can be disciplined more harshly and frequently because of their race.²⁰ Children across races engage in risky or delinquent behavior at the same rate.²¹

Second, one might think that system involvement can “expedite and shorten a youth’s wait for services” or that the system involvement would be more helpful than harmful to children of color with disabilities.

This too is untrue.²² Involvement in the juvenile justice system, especially placement of out of home including detention and incarceration, has been shown to expose youth to significant health issues and can place these children at higher risk for abuse.²³

Third, one might think that the system would lead to safer school environments and more successful or rehabilitative outcomes for children who are supervised by and placed into the juvenile justice system.

This also does not bear out. “[T]here is no evidence that frequent reliance on removing misbehaving children improves school safety or student behavior.”²⁴ Suspending or excluding children can have the opposite effect on academic achievement: “recent research indicates a negative relationship between the use of school suspension and expulsion and school-wide academic achievement, even when controlling for demographics such as socioeconomic status.”²⁵ Further, involvement in the juvenile justice system does not lead to deterrence of criminal or delinquent behavior.²⁶

It is clear that the status quo is not effective and is leading to a stark disadvantage for this especially vulnerable population.

Interrupting the School to Prison Pipeline for Wisconsin’s Most Vulnerable Youth

Combating the school to prison pipeline’s effects on children of color with disabilities is a complex and nuanced proposition. However, system stakeholders cannot allow the machinery of this pipeline to continue unabated, especially when we see such starkly disparate results for this vulnerable population in Wisconsin.

For further comprehensive explanation of school discipline and the school to prison pipeline and its effects on students of color with disabilities, stakeholders can review the July 2019 briefing report from the United States Commission on Human Rights, Beyond Suspensions: Examining School Discipline Policies and Connections to the School to Prison Pipeline for Students of Color with Disabilities.

1. Gather consistent data related to children of color with disabilities.

As described above, while the data that is currently available presents a concerning picture, to further address the intersection of race and disability in juvenile justice, consistent qualitative and quantitative data needs to be collected to highlight this population of crossover youth.

This dearth of research and data falls within a need that expands beyond the juvenile justice system and is a need that spans beyond Wisconsin.²⁷ Collection of such data can help to inform policy changes, as well as individual decisions by social workers, prosecutors, and judges. Without aggregate data related to this specific crossover population, it will be difficult to fully identify and address these multiple levels of disparity.

2. Provide culturally and developmentally appropriate support for children of color with disabilities.

Students of color with disabilities are subject to removal from school at a higher rate than other students. They are also subject to higher rates of assault by police officers.²⁸ Proper special education services and behavioral interventions could help to prevent these rates.

Involving more mental health and health care professionals in schools in addition to – or instead of – law enforcement can help to provide the necessary services to avoid the inappropriate placement and referral of children to the juvenile justice system.²⁹

Education and police training specifically related to race and disability can also help school resource officers and others to identify possible areas of confusion or misinterpretation. Youth with disabilities may engage in behaviors that “appear concerning but are actually quite harmless,” “may be more likely to confess to a crime they did not commit, may not be able to express exactly what happened during an incident, or may be named by another youth in an attempt to deflect responsibility.”³⁰

A consistent area of growth that is needed in the juvenile justice system is individualized mental health and disability-specific community treatment. Especially in rural areas of Wisconsin, this population of children can face an absolute lack of appropriate community resources –a lack that affects them in particular. Juvenile justice stakeholders can help to create partnerships with disability advocacy groups to further build wraparound services for these children.

It is important for all those interacting with youth of color with disabilities to understand the impact of these dynamics on the individual client. Stakeholders can often lack the information and education related to the child’s disability and its impact on their system involvement.

3. Encourage appropriate and frequent diversion of children of color with disabilities.

How do we start addressing the school to prison pipeline, especially as it relates to this particularly vulnerable population?

Diversion from justice system involvement at multiple points along the pipeline is the best way to address the disparities impacting children of color with disabilities. According to the Sentencing Project,

the lack of diversion opportunities for youth of color is pivotal, because greater likelihood of formal processing in court means that youth of color accumulate longer court histories, leading to harsher consequences for any subsequent arrest.³¹

In fact, diversion seeks to address and produce the outcomes that this population has so long been unable to obtain. Children who are diverted from system involvement “have far lower likelihood for subsequent arrests, are less likely to be incarcerated, commit less violence, have higher rates of school completion and college enrollment, and earn higher incomes in adulthood.”³²

Diversion holds the promise of restoring the hope that seems to elude children of color with disabilities. It holds the possibility of stemming disparities and rerouting these children away from the school to prison pipeline.

Conclusion: See the Whole Child

As legal stakeholders, we can and ought to do better to serve these children who sit at the intersection of race and disability, for their sake and for our society as a whole. We ought to be cognizant of the harm that the school to prison pipeline exacts on Wisconsin’s children, especially those of color and with disabilities.

This article seeks to spark that conversation, highlight the need to view each child we interact with as a whole child, and start the work toward stemming the school to prison pipeline in Wisconsin.

This article was originally published on the State Bar of Wisconsin’s Children & the Law Section Blog. Visit the State Bar sections or the Children & the Law Section webpages to learn more about the benefits of section membership.

Endnotes

¹ Wisconsin Youth Justice Referrals and Intake Report for Calendar Year 2022, Wisconsin Department of Children and Families, Feb. 2024. See also Joshua Rovner, “Black Disparities in Youth Incarceration,” The Sentencing Project, Dec. 12, 2023; and Kids Forward, “The Complex Maze of the Juvenile Justice System in Wisconsin and Its Impact on Youth of Color,” August 2018.

² Sarah E. Redfield and Jason P. Nance, “American Bar Association: Joint Task Force on Reversing the School-to-Prison Pipeline,” 47 U. Mem. L. Rev. 1, 2016.; Jessica Snydman, “Unlocking Futures: Youth with Learning Disabilities and the Juvenile Justice System,” National Center for Learning Disabilities (2022); “Probation Referral: A Model for Diversion of Children and Youth with Disabilities from the Juvenile Justice System,” National Disability Rights Network, Oct. 12, 2019.

³ “Probation Referral.”

⁴ Kristin Henning, The Rage of Innocence: How America Criminalizes Black Youth, Pantheon Books, New York, 2021.

⁵ Id. See also Catherine Y. Kim, et al., The School-to-Prison Pipeline: Structuring Legal Reform, NYU Press, 2010; Monique W. Morris, Pushout: The Criminalization of Black Girls in Schools, The New Press, New York, 2016.

⁶ Redfield and Nance, “American Bar Association: Joint Task Force on Reversing the School-to-Prison Pipeline.”

⁷ Id.

⁸ Id.

⁹ Id.

¹⁰ Id.

¹¹ “Profile of Students with Disabilities in U.S. Public Schools During the 2020-21 School Year,” U.S. Department of Education Office for Civil Rights, February 2024; and “Referrals to Law Enforcement and School-Related Arrests in U.S. Public Schools During the 2020-21 School Year,” U.S. Department of Education Office for Civil Rights, November 2023.

¹² Wisconsin Youth Justice Referrals and Intake Report for Calendar Year 2022, Wisconsin Department of Children and Families, Feb. 2024.

¹³ Wisconsin Watch, “Wisconsin Schools Called Police on Students at Twice the National Rate – for Native Students, It Was the Highest,” Sept. 27, 2021.

¹⁴ Juvenile Justice and Youth Aids Program, Legislative Fiscal Bureau, January 2023.

¹⁵ Rovner, “Black Disparities in Youth Incarceration.”

¹⁶ Mary Wickenden, “Disability and Other Identities? – How Do They Intersect?” Frontiers in Rehabilitation Sciences, Aug. 10, 2023.

¹⁷ Wis. Stat. section 938.01(2)(c) explains that one of the purposes of the Juvenile Justice Code is “to provide an individualized assessment of each alleged and adjudicated delinquent juvenile, in order to prevent further delinquent behavior through the development of competency in the juvenile offender, so that he or she is more capable of living productively and responsibly in the community.”

¹⁸ One of the main concepts in juvenile justice is viewing each child with their strengths. To see more about positive youth development, seePositive Youth Development, Youth.gov.

¹⁹ Redfield and Nance, “American Bar Association: Joint Task Force on Reversing the School-to-Prison Pipeline.”

²⁰ Redfield and Nance, “American Bar Association: Joint Task Force on Reversing the School-to-Prison Pipeline.” See also Emily Morgan, et al., The School Discipline Consensus Report: Strategies from the Field to Keep Students Engaged in School and Out of the Juvenile Justice System, The Council of State Governments Justice Center (2014).

²¹ U.S. Dept. of Health and Human Services Centers for Disease Control and Prevention, Youth Risk Behavior Surveillance – United States, 2015, Morbidity and Mortality Weekly Report, Surveillance Summaries, Vol. 65, No. 6, 2016.

²² Probation Referral: A Model for Diversion of Children and Youth with Disabilities from the Juvenile Justice System, National Disability Rights Network, October 2019.

²³ Richard Mendel. “Why Youth Incarceration Fails: An Updated Review of the Evidence,” The Sentencing Project, December 2022.

²⁴ Daniel J. Losen and Russell Skiba, Suspended Education: Urban Middle Schools in Crisis, Sept. 1, 2010.

²⁵ American Psychological Association Zero Tolerance Task Force, “Are Zero Tolerance Policies Effective in Schools? An Evidentiary Review and Recommendations,”63 Am. Psych. 852, 2008.

²⁶ Richard Mendel, “No Place for Kids: The Case for Reducing Juvenile Incarceration,”The Annie E. Casey Foundation, Oct. 4, 2011.

²⁷ Count Everyone, Include Everyone: The Need for Disability Inclusion and Representation in Federal Data, National Disability Rights Network, October 2021.

²⁸ T. Whittenberg, et al., “#AssaultAtSpringValley: An analysis of police violence against Black and Latine students in public schools,” Advancement Project & Alliance for Educational Justice, 2022.

²⁹ Amir Whitaker, et al., “Cops and No Counselors: How the Lack of Mental Health Staff is Harming Students,” ACLU, March 4, 2019.

³⁰ Richard Mendel, “Diversion: A Hidden Key to Combating Racial and Ethnic Disparities in Juvenile Justice,” The Sentencing Project, Aug. 30, 2022.

³¹ Id.

³² Id.