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

Lydia Nussbaum

Volume 69, Issue 2, 583-646

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.

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