Erica L. Green et al., New York Times, October 1, 2020
Zulayka McKinstry’s once silly, sociable daughter has stopped seeing friends, talking to siblings and trusting anyone — changes Ms. McKinstry dates to the day in January 2019 when her daughter’s school principal decided that “hyper and giddy” were suspicious behaviors in a 12-year-old girl.
Ms. McKinstry’s daughter was sent to the nurse’s office and forced to undress so that she could be searched for contraband that did not exist.
“It’s not fair that now I have to say, ‘It’s OK to be Black and hyper and giddy,’ that it’s not a crime to smile,” Ms. McKinstry said. “And she doesn’t believe me.”
The Binghamton case is now the subject of what might be a groundbreaking federal lawsuit by the NAACP Legal Defense and Educational Fund, which has drawn on the disparate treatment and discipline rates of Black girls to pursue it.
The disproportionate discipline rates of Black boys have long dominated discussions about the harmful effects of punitive discipline policies, but recent high-profile cases have begun to reframe the debate around the plight of Black girls.
Just this week, the Common Application for colleges and universities cited disproportionate discipline rates for Black girls in its decision to stop asking students to report whether they had been subject to disciplinary action.
Statistically, Black boys have led the country in suspensions, expulsions and school arrests, and the disparities between them and white boys have been a catalyst for national movements for change. But Black girls’ discipline rates are not far behind those of Black boys; and in several categories, such as suspensions and law enforcement referrals, the disparities between Black and white girls eclipse those between Black and white boys.
A New York Times analysis of the most recent discipline data from the Education Department found that Black girls are over five times more likely than white girls to be suspended at least once from school, seven times more likely to receive multiple out-of-school suspensions than white girls and three times more likely to receive referrals to law enforcement. Black boys experienced lower rates of the same punishments compared with white boys.
In New York City, Black girls in elementary and middle school were about 11 times more likely to be suspended than their white peers in 2017, according to a report from the Education Trust-New York, a research and advocacy group. In Iowa, Black girls were nine times more likely to be arrested at school than white girls, according to a state-by-state analysis conducted by the American Civil Liberties Union.
“We are in a battle for the souls of Black girls,” said Monique W. Morris, the executive director of Grantmakers for Girls of Color and author of the book “Pushout: The Criminalization of Black Girls in School.”
The disproportionate discipline rates among girls indicate what researchers have long said about all Black children: It is not that they misbehave more than their peers, but their behaviors may be judged more harshly. Federal civil rights investigations have found generally that Black students are punished more harshly than their white peers for the same behavior. Black girls in particular are more likely to be punished for subjective infractions like dress code violations and insubordination.
Black girls are viewed by educators as more suspicious, mature, provocative and aggressive than their white peers, said Rebecca Epstein, the executive director of the Georgetown Law Center on Poverty and Inequality and an author of the first robust study of “adultification bias” against Black girls. The study found that Black girls as young as 5 were viewed by adults as less innocent than white girls.
“Developmentally, Black girls and white girls are the same — regardless of any differences in outward presentation,” she said.
The Binghamton lawsuit, filed last year by the NAACP Legal Defense and Educational Fund and the Morrison & Foerster law firm against the Binghamton City School District, will test whether such studies can translate into legal recourse.
The organization argued that administrators “were motivated by false race- and gender-based stereotypes in directing, facilitating and conducting these unlawful searches” on Ms. McKinstry’s daughter and three other 12-year-old Black girls. The school nurse who conducted the searches called the girls “loud, disrespectful and having ‘attitudes,’” the complaint said. It accused the nurse of commenting that the breasts of one of the girls were unusually large for her age and of invoking the “stereotypical view of Black girls as older and more mature than white girls of similar age.”
“This case is about the criminalization of Black childhood,” said Cara McClellan, a lawyer who is representing the girls.
Last month, a Syracuse, N.Y., judge ruled that the case could go forward on unlawful search claims but granted the school district’s motion to dismiss the race discrimination charge, in part because the complaint’s data was not recent or granular enough to show that administrators targeted the girls because of their race. He wrote that the “defects in plaintiffs’ complaint” were technical and that a “better pleading could cure them.” The NAACP Legal Defense and Educational Fund plans to amend its filing to bolster its race discrimination claims.
In a statement, Shannon T. O’Connor, the lawyer for the Binghamton City School District, maintained its position that the four girls “presented symptoms that suggested the school nurse should provide a standard health and safety check,” and that they were not strip-searched. She said the girls were cleared without “incident, complaint or discipline of any kind.”
“This has been a trying time for students and educators, one made more so, here, by the interference of an outside interest determined on making a spectacle,” Ms. O’Connor said.
Black Girls Find a Spotlight
In 2014, President Barack Obama announced a national initiative called My Brother’s Keeper to improve the lives of young Black men. Motivated in part by the killing of Trayvon Martin in 2012, Mr. Obama said the initiative was an effort to “change the statistics — not just for the sake of the young men and boys, but for the sake of America’s future.” Among the program’s goals: school discipline reform.
A few months later, Kimberlé Crenshaw, a professor and scholar of race theory, wrote an opinion article titled “The Girls Obama Forgot.” She also published a report that concluded Black girls were all but ignored by policymakers, funders and researchers in discipline discussions. An NAACP Legal Defense Fund report in 2014 said inattention to Black girls had “fueled the assumption that all girls are doing fine in school,” though they also sustained academic and economic setbacks.
An issues brief in March 2014 by the Education Department concluded that “while boys receive more than two out of three suspensions, Black girls are suspended at higher rates” than “girls of any other race or ethnicity and most boys.”
A report by the Education Trust and the National Women’s Law Center, released in August, urged school districts to seek alternatives to suspensions and detentions for girls of color. Girls of color, it concluded, were being subjected to “punishments that have more to do with who these girls are rather than what they do.”
The Binghamton case spurred protests and petitions, but the girls — now 14 and starting high school — see no justice.
A state investigation ordered by Gov. Andrew M. Cuomo produced a report that listed the district’s policies, including its strip-search policy, but did not address the girls’ case. The New York State Police Department said its investigation was closed without charges.