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Theresa Glennon
excerpted from: Evaluating Institutional Practices and the African American Boy ,
5 Journal of Health Care Law and Policy 10-67, 10-14, 66-67 (2002)(393
Footnotes)
The media portrays young black men as dangerous, hostile and out of
control. While many African American boys do succeed, statistics about
black youth reveal serious achievement gaps between them and their
Caucasian counterparts in school and high rates of arrest and referral
to juvenile court. Research often focuses on family and cultural
"deficits," looking to blame higher rates of single-parent
households, poverty and an oppositional peer culture for these deeply
troubling statistics.
The statistics presented in this article show that some of the same
social institutions charged with nurturing children actually divert many
African American boys from paths to successful development. Instead,
these institutions label, discipline, segregate, punish, and confine
them. Too often, they crush the souls of black boys. This article
explores the statistics available to confirm the negative treatment that
African American boys encounter in our educational, mental health and
juvenile justice systems. The data collected here supports three main
conclusions. First, African American boys are much more likely to be
identified as disabled or delinquent than other children, including
African American girls. Second, they are more likely than other children
to be placed in educational, mental health, and juvenile justice
programs that exert greater external control and deliver fewer services
despite identified needs. Third, these negative experiences lead African
American boys to stay away from or exit these institutional settings.
These statistics are stark and disturbing. Unexplained by family
structure, poverty, or culture, they reveal widespread institutional and
personal racism.
I chose to become a lawyer in the belief that law can be an
instrument for progressive social change. Unfortunately, the hopeful era
of civil rights litigation, initiated by the NAACP and culminating in
Brown v. Board of Education, is over. By now, judicial protection of a
still separate and unequal status quo through doctrinal developments
under the Equal Protection Clause and the Civil Rights Act of 1964 is
clear. Scholars have documented the deepening divide between racial
inequality and formalist interpretations of civil rights law that
largely help white people protect entrenched advantages. Recent analyses
of civil rights laws such as TitleVI of the Civil Rights Act of 1964 are
apt to focus on their limitations rather than their promise. Work for
racial equality, however, cannot stop.
Ideally, the racial disparities documented here would, on their own,
spur educators, mental health professionals and juvenile justice
officials to act affirmatively to evaluate and change the intertwining
conditions of structural and unconscious racism that so negatively
affect African American boys. However, given the ongoing and unchanging
nature of these disparities, it appears necessary that our laws
prohibiting racial discrimination be used as tools to force officials to
change their institutional practices. Law invariably expresses our
societal values. Thus, a turn to the legal system can be effective
through the force of judicial decrees, and by the creation of social
norms that value racial equality. While too often antidiscrimination law
has been used to "create[ ] the illusion that racism is no longer
responsible for the condition of the black underclass," legal
challenges to racial inequalities remain one part of the
"multi-dimensional groundwork" in the work for racial
equality.
For the programs examined in this article, the most promising legal
avenue involves the federal regulations developed to enforce Title VI of
the Civil Rights Act of 1964. These regulations prohibit recipients of
federal funds from engaging in policies and practices that have a
racially disparate impact on African American boys and other minority
children. However, the right of private plaintiffs to seek redress under
the Title VI regulations is under siege. A recent decision by the U.S.
Supreme Court restricted access to the courts to enforce the
regulations. Lower federal court decisions in some jurisdictions have
gone even further, completely eliminating private parties' access to
judicial relief for violations of the Title VI disparate impact
regulations. These regulations are vitally important to addressing
racial discrimination by our publicly funded institutions, institutions
that hold great power in the lives of our youth. Advocates must
therefore challenge judicial restrictions and demand that Congress keep
open this vital avenue for protecting civil rights.
The analysis in this article supports the importance of maintaining
access to the courts to challenge policies and practices that negatively
affect African American boys and other minority children. This article
re-evaluates Title VI of the Civil Rights Act, and in particular its
implementing regulations, to explore its promise as an effective tool to
require the social institutions of childhood to effectively educate and
aid African American boys. After documenting the dramatic disparities in
the treatment of African American boys, this article examines doctrinal
developments in the contexts of disability, language, minority and
gender discrimination to suggest that a more vigorous approach to Title
VI can help protect African American boys from the pervasive
discrimination they face in our social institutions. Advocates have been
breathing new life into Title VI by using it to attack structural racism
in the form of school I suggest that advocates also focus on the biased
practices within schools, mental health and juvenile justice programs
that further unconscious racism, and challenge the interrelated
practices of structural and unconscious racism. Advocates must work both
to ensure access to the courts to challenge policies and practices that
have a racially disparate impact on minorities and to ensure that
private litigants effectively employ the disparate impact regulations to
diminish the harsh disparities described here.
Finally, this article outlines more recent legislation that responds
to the striking disadvantages black youth experience in our education,
mental health and juvenile justice systems and suggests using those
provisions to advocate change in institutional practices as well as
placing more such requirements into law through legislative advocacy.
This Nation has tolerated a shockingly high level of disparate
treatment of racial and ethnic minorities. As this article clearly
shows, African American boys have been excessively subjected to
practices in our public education, mental health and juvenile justice
systems that label, discipline, segregate, punish and confine them. When
African American boys enter our schools, mental health and juvenile
justice programs, the programs they receive should be equally effective
and designed to enable them to achieve the academic success, good mental
health and rehabilitation that are the goals of those programs. In order
to accomplish this goal, advocates should argue for a strong
interpretation of the Title VI disparate impact regulations to clearly
attack the unstated racial norms of these institutions and the
accompanying structural and unconscious racial discrimination that so
impede African American boys. At a time when access to the courts to
enforce the Title VI disparate impact regulations is under siege,
advocates must act forcefully to protect that access and to utilize the
regulations to their fullest in the service of racial equality. |
