National Black Law Journal
Could the State Takeover of Public Schools Create a State-Created Danger? Theorizing at the Intersection of State Takeover Districts, the School-to-Prison Pipeline, and Racial Oppression
- Author(s): Nelson, Steven
- et al.
Federal courts have consistently rejected plaintiffs’ arguments that the government is liable when citizens suffer injuries at the hands of private third parties. In the context of education, there are few cases where federal courts have held that schools are liable for the injuries that students incur at the hands of private third parties. This Article puts forth a theoretical argument for schools, specifically schools operating under the governance of a state takeover district in a predominately Black school district with a predominately Black-elected school board, to be held liable for participating in disciplinary practices that are linked to the school-to-prison pipeline. The Article first traces the roots of the State-Created Danger Doctrine and then discusses the role of education reform policies in enabling the school-to-prison pipeline. Next, the Article provides a statistical analysis of three case studies in state takeover districts (Detroit, Memphis, and New Orleans). My research found no instances where the state takeover district disrupted the school-to-prison pipeline, but I discovered multiple instances where state takeover districts have exacerbated the school-to-prison pipeline. In this Article I argue that there is hope in the Sixth Circuit (Detroit and Memphis) for the use of the State-Created Danger Doctrine, which grows out of the Fourteenth Amendment’s Due Process Clause, to mitigate the school-to-prison pipeline. However, the Fifth Circuit (New Orleans) appears to have foreclosed legal causes of action based on the State-Created Danger Doctrine. Finally, this Article provides a critical race critique of the school-to-prison pipeline and the few tools that Black people have to combat this form of racial subjugation in light of education reform policies.