by Amy B. Cyphert

In 2014, the Department of Education’s Office for Civil Rights published data for the first time that tracked preschool suspension and expulsion rates. The data was startling: not only were preschoolers being suspended and expelled, something that surprised many readers on its own, they were being suspended and expelled in racially disproportionate numbers, with African‑American boys bearing the brunt of the discipline. Politicians, researchers and advocates quickly spoke out, noting that these numbers confirmed that the school to prison pipeline really starts in preschool, and calling for reform.

In this Article, I explore some of the policies and practices that have led to preschool expulsions, including zero tolerance policies and the challenging behavior of preschoolers, and also offer theories on what might have led to their racially disproportionate use, including unconscious bias on the part of teachers and administrators. I also examine the tragic impact these disciplinary procedures can have on students and their families. I next examine the long odds for success that most legal challenges to racially disproportionate preschool expulsions and suspensions will face, due mostly to judicially imposed requirements that plaintiffs establish racially discriminatory intent, not just disparate outcomes. Finally, I sketch the contours of what a successful policy-based solution might look like, and how best practices from existing research and programs might be utilized to create meaningful change.


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