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Open Access Publications from the University of California

Disability Law Journal


The Construction and Criminalization of Disability in School Incarceration


This Article explores how race functions to ascribe and criminalize disability. It posits that for White students in wealthy schools, disabilities or perceived disabilities are often viewed as medical conditions and treated with care and resources. For students of color, however, the construction of disability (if it exists) may be a criminalized condition that is treated as warranting punishment and segregated classrooms, possibly leading to juvenile justice system involvement. Providing a review of the K-12 disability legal regimes, this Article maps how the process of identifying a student with a disability happens in a hyper-criminalized school setting. The Article argues that the school itself contributes to the construction and criminalization of disability and that the attribution of disability is a product of the subjectivity built into the law, heavily surveilled school environments, and biases held by teachers and administrators. For students of color, instead of a designation that attracts more resources, disability is one of the mechanisms through which they are criminalized. This Article culminates with a call for scholars and practitioners to understand the web that exists in the construction and criminalization of disabilities for Black and Latinx children and the role that schools and school actors play in this process.

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