Protection For/From Whom?: Examining the Relationships Between Policy and Discourse in the Policing of Immigrant Youth in Schools

Brian Mercado

The right to a public education from kindergarten through high school graduation is legally mandated for every minor living in the United States, including undocumented children and youth. The Supreme Court upheld these rights in the case of Plyler v. Doe, with the court basing its ruling on the Fourteenth Amendment’s Equal Protection Clause, which dictates that no state will deny any person equal protection of the laws. Due to this protective framing, Plyler v. Doe being has been included in discussions of the “legal protections” (Abrego 2006) that give undocumented minors access to education and which offers a status of “suspended illegality” (Gonzalez 2011, p. 608) in which minors experience temporary social inclusion and legal integration that does not correspond with undocumented adulthood. Additionally, the Family Educational Rights and Privacy Act (FERPA) is meant to act as a protective barrier to the sharing of student information with government agencies without the consent of the student or their parents, except in the presence of a select few conditions. FERPA, in conversation with Plyler v. Doe, has been regarded as a law protecting the information of immigrant students (Morse and Ludovina 1999).

This framing of schools as protective sites for immigrant and undocumented minors from immigration enforcement is embedded in the American Dream discourse, which points to formal education as a rite of passage to integration into United States society (Jefferies 2014). Against the backdrop of these federal laws and rulings, some schools conveying an affirmation to protect undocumented students and their families from and limiting cooperation with immigration enforcement have adopted a “sanctuary school” label, modeling broad “sanctuary city or state” policies taken up by local and state jurisdictions.

At the same time, counter to this framing of schools as protective places or their labeling as “sanctuary schools,” other scholarship has identified schools as places that engage in practices of disciplining students and punishing them for their comportments ranging from common, developmentally-typical behaviors to actions deemed zero tolerance, or subject to strict application of punishment. This research has tracked the imposition of the criminal law system into schools in the United States, particularly around zero tolerance policies and the introduction of police officers into schools, leading to disproportionate punishment of Black and Brown youth in secondary schools, referred to as the school-to-prison pipeline (Advancement Project et al. 2011). Some scholars of education and schooling have reframed the school-to-prison pipeline as a school-prison nexus, a dynamic relationship whereby some schools effectively operate as carceral sites, and thus conceptualizing of a pipeline to prison negates the prison like conditions, policies, and practices already prevalent in schools around the United States (Krueger 2010; Rodriguez 2008; Stovall 2018). This understanding of schools can be taken one step further in order to paint the school as an institution of the state that serves as an extension of the criminal law system. This creates a tension with schools seemingly being places certain students have the right to attend to receive a public education, resources, and services while also operating under a logic of punishment through zero tolerance policies, disciplinary codes, and surveillance of students.

The school exists in a liminal state between protection and carcerality, both of which are enacted unevenly on different students. The rights afforded to students are harnessed in the school under a logic of inclusion whereby only those students deemed deserving of protection gain access to the school and the sanctuary and care it purports to provide. Those people relegated as undeserving, particularly those youth that are labeled as “criminal” or “gang affiliated,” are implicitly (and at times explicitly) regarded to be unworthy of education and the protection afforded by schools. Not only does this leave those deemed undeserving outside of the walls of protection to be swallowed by the state violence of federal immigration enforcement, but the school itself facilitates the banishment of the students deemed undeserving. Thus, the rights afforded to immigrant students, particularly undocumented students, are fundamentally limited when sanctuary is afforded through discourses that profess to mobilize protection for deserving students and state structures that seek to solve issues created by the very same state (Paik 2017, 2020). The end result is a legitimization of a discourse of security whereby law enforcement becomes seen as necessary in schools to both protect and police students, with the emphasis of either protection or policing toward an individual student arising based on the student’s positioning on the dichotomy of “good immigrant/student/kid” and “bad immigrant/student/kid.”

I aim to reveal how liberal frameworks of schools as protective institutions, perhaps even sites of sanctuary, for undocumented students from federal immigration enforcement are rooted in discourses and logics that selectively mobilize protection only for those students deemed deserving of the school’s protection. This “discourse of deservingness” implicitly creates a group of undeserving students that not only are excluded from protection, but are framed as the very threats that necessitate, legitimize, and institutionalize policing in schools, whether through formal cooperation with local law enforcement agencies in the creation of school resource officer positions or with the actions of non-police actors that support and expand official police operations.

In this article, I illustrate the multidirectional relationships between policy and discourse, which involves the ways legal changes are shaped by discourses rooted in carcerality and racialized xenophobia and the ways discourses become concretized through legal changes. In order to point to these relationships, I refer to literature that tracks the entrenchment and expansion of forms of carceral, policing, and immigration enforcement practices in schools. Ultimately, I show how these regimes are tied together within the institution of the school to the detriment of immigrant youth with tenuous legal statuses. At times, I refer to the case study of Operation Matador, a program partnering the federal government’s immigration enforcement system with state and local law enforcement agencies in an effort to gather information to take action against perceived MS-13 activities in New York City, Long Island, and Hudson Valley. The case of Operation Matador points to the fallacies of a sanctuary framework that operates through state structures when taking into account the mechanisms by which ICE is allowed to circumvent policies and practices meant to protect student information.

TRACING THE CONNECTIONS

In reviewing the literature for this piece, I begin by engaging with Jean Anyon’s article asking, “What ‘Counts’ as Educational Policy” (2005)? In it, Anyon invites the audience to imagine a framing for what is considered educational policy that intersects with domains previously considered separate or peripheral from the educational landscape, including policies and laws that have impacts on the success of schools and the students that attend them. In this vein, I also ask: what “counts” as criminal law policy, and what “counts” as immigration enforcement policy? In this section, I review the literatures of the crucial points of intersection, namely the intersection of criminal law and immigration enforcement policy which serves as the infrastructure of the deportation regime and its implications for the introduction of local police agencies in public schools.

     Entrenching the Deportation Regime

Though the modern infrastructure that vastly expanded the deportation regime in the United States was set in motion before 9/11, the unprecedented mobilization of the detention and deportation regime was accelerated as a consequence of these events. In the aftermath of 9/11, immigration enforcement issues were framed around issues of security. According to Mittelstadt et al., “The 9/11 hijackers entered the country with legally issued visas — a fact that immediately linked immigration with terrorism and national security. As a result of 9/11, the structure of the federal immigration bureaucracy and immigration policies at the borders and within the US interior have been dramatically reshaped, and the immigration debate in Washington and beyond is now viewed almost entirely through the prism of national security and immigration enforcement” (2011, p. 1).

President Bush subsequently signed into law the Homeland Security Act of 2002, which created the Department of Homeland Security. The Department of Homeland Security’s objectives included “achieving effective control of US borders and the expansion of a ‘zone of security’ beyond US borders, enforcement of immigration laws, strengthened screening of travelers/workers and streamlined lawful visitor admission, and improved security by denying immigration benefits to ‘dangerous individuals’” (ibid., p. 2). The Department of Homeland Security is comprised of various departmental agencies, including its largest investigative agency, the United States Immigration and Customs Enforcement (ICE), which assumed the functions of detention and deportation from the reorganized Immigration and Naturalization Services, as well as most of its intelligence operations (ibid.).

According to Mittelstadt, et al., one of the outcomes of these laws, which set up the new legal apparatus purportedly meant to secure the United States from attacks, is an increase in collection and sharing of information between intelligence agencies in the pursuit of national security, as well as the “rise of state and local actors as players in policymaking and enforcement province that previously had been almost entirely the purview of the federal government” (1-2). This increase in sharing of information gave form to collaborative databases and enterprises such as the Department of Homeland Security Transnational Organized Crime Initiative (DHS TOCI), which serves to share criminal and immigration enforcement capabilities and information (U.S. Immigration and Customs Enforcement 2018b). This initiative calls for the delegation of immigration enforcement capabilities to state and local jurisdictions and the passing of information between the databases of local, state, and federal agencies, including in the effort to catch individuals labeled as gang associates. These legal apparatuses, kept in place throughout the post-9/11 government reorganization, come into play as undocumented youth and youth with tenuous legal statuses in schools are targeted.

     The Current Punitive Turn and the Institutionalization of Police in Schools

Moving to the discursive shifts that have institutionalized punitive surveillance and disciplining of racialized and criminalized students in schools, sociological and criminological literature uniformly agrees that these processes are feeders of mass incarceration (Majd, 2011; Thomas, 2013; Scott, 2017, Vitale, 2017). The origins of the cultural shift of the current turn in punitive school discipline came with the emergence of the racialized “juvenile superpredator” trope, coined and popularized by John Dilulio (1995). Dilulio and colleagues warned of a new wave of incoming crime that would be perpetuated by “radically impulsive, brutally remorseless youngsters” (Bennet, Dilulio, and Walters, 1996). However, Vitale states that “Dilulio’s ideas were based on spurious evidence and ideologically motivated assumptions that turned out to be totally inaccurate. Every year since, juvenile crime in and out of schools in the US has declined” (2017, p. 56). This did not stop the term from becoming rooted in the collective consciousness of the United States, including being used by then-First Lady Hillary Clinton when discussing the “organized effort against gangs” in an event in New Hampshire in 1996 (C-SPAN, 1996). The fear exacerbated by the purported rise in violent crime was a major component in the passing of new legislation, both federal and state, that increased punitive outcomes for youth involved in the criminal justice system, which were usually manifested through the advent of zero tolerance policies (Mallett, 2013).

In what served as one of the first laws that instituted zero tolerance policies in schools, the Gun Free Schools Act of 1993, signed into law by Bill Clinton in continuation of a succession of tough-on-crime legislation, led to automatic expulsion from school for students caught with guns on campus for at minimum one year. Amendments followed this legislation, eventually broadening the zero tolerance policies to be applicable to other types of weapons (Birkland and Lawrence 2009). This federal legislation began the march toward the adoption of zero tolerance policies across federal and state scales, as within two years of the passage of the Gun Free Schools Act, all states had ratified amenable legislation (Brady 2002). Subsequent enactments of zero tolerance policies in schools followed the punitive trend set up in the Gun Free Schools Act, including establishing mandatory suspensions and expulsions for a range of behaviors deemed both “violent” and “non-violent.” Violent behaviors subject to zero tolerance policies includes fighting, assault, vandalism, destruction of school property (Kupchik and Monahan, 2006; Verdugo, 2002), while non-violent behaviors subject to these policies include disobedience, obscene language, and truancy (Arum, 2003; Marsh, 2014).

Beyond the imposition of zero tolerance policies but intimately tied to them, the advent and continued presence of full-time school resource officers (SROs) in secondary schools across the country, originally implemented through the Safe Schools Act of 1994 and its 1998 Amendment, is an example of a long-term institutionalized change based on the fear of school violence perpetrated by youth (Vitale, 2017). These partnerships between schools and police have two policy objectives: improve the supposed safety of schools and its students, and build structural collaborations between schools and the police force (Rich-Shea and Fox 2014). In a reinforcing relationship with zero tolerance policies, the presence of police officers in schools has led to a sharp increase in the criminalization of youth for relatively minor offenses, namely minor and developmentally normal misbehaviors (Advancement Project, 2005; Thurae and Wald, 2010).

     School Resource Officers and Immigration Enforcement

Thus, the introduction of SROs into schools institutionalize collaborations between the local police agencies and public school systems. Additionally, the aforementioned criminal justice and immigration enforcement legal precedents allow school resource officers to become proxies for the immigration surveillance state and enforcement regime. In Long Island, New York, the aforementioned collaborative enterprise DHS TOCI was the legal mechanism used to conceive of Operation Matador, an “intelligence driven, unified effort to combat the proliferation of MS-13 and other transnational criminal gang activity in Long Island, the New York City metropolitan area and Hudson Valley” (US Immigration and Customs Enforcement, 2018b). This partnership made it so that police departments that have officers stationed at schools, whose role as SROs dictates they document incidents in schools and log that information into their department’s database, gave ICE access to information of incidents occurring in school (Dreier 2018). The presence and increased use of SROs in the day-to-day operations of schools allows for this information to be logged, which, with Operation Matador in effect and through the linking of interoperable databases, becomes information available to ICE.

With the increased use of school resource officers in the day-to-day operations of schools, more information than ever before is being logged by officers, which, with Operation Matador in effect, becomes information available to ICE. The gang associate label has served as the impetus for immigration enforcement officers to detain these youth with tenuous legal statuses, eventually leading to the deportation of several students labeled “gang associated” (ibid.).

These examples serve to illustrate how police officers, specifically SROs, engage in practices that place them as appendages of the immigration surveillance state. In particular, based on the goals of Operation Matador, actions deemed to be gang associated, defined as such based on the discretion of the SROs documenting the incident, were the ones that led to arrest and detention of youth. Purportedly, laws like the 1974 Family Educational Rights and Privacy Act (FERPA) act as protective barriers to this type of sharing of student information with government agencies. However, in the name of security, Operation Matador serves as a loophole to these privacy rights. The gang associate label served as the impetus for immigration enforcement officers to detain these youth with tenuous legal statuses, eventually leading to the deportation of several students labeled gang associated (ibid.).

Operation Matador lent ICE the opportunity to insert itself into schools without having its agents within the physical boundaries of the schools, thus circumventing any backlash they may face from their physical involvement in school affairs, which would place them in direct opposition with their own policy of immigration enforcement in schools. U.S. Immigration and Customs Enforcement lists schools as “sensitive locations”, which are places that are designated to be sensitive enough that immigration surveillance and enforcement cannot occur except under specific circumstances on a case-by-case basis (U.S. Immigration and Customs Enforcement 2018a). The very language of “sensitive locations,” reminiscent of the idea that schools afford safety from the state, highlights the bleeding of liberal ideas of sanctuary into violent state institutions and practices.

The aforementioned policy, which operates under similar logics to sanctuary through state structures, tempers the operations of ICE but proves insufficient in providing protection to students due to the diffusion of law enforcement in schools. Instead, SROs serve as informally deputized immigration enforcement agents based on their surveillance and documentation of students. This increased surveillance, documentation, and criminalization of youth with tenuous legal statuses, based on incidents previously logged as behavioral or cultural misunderstandings, incidents which are themselves already subject to punitive responses such as suspension, expulsion, and/or referral to local police departments, are being used to track youth deemed to be gang affiliated, leading to their detention on these grounds pending deportation.

CONCLUSION

This article has ventured to track the multidirectional relationships between carceral policies and discourses. This carceral infrastructure arises from policies and discourses that mutually reinforce each other as legal changes are shaped by punitive and “Othering” discourses, while at the same time discourses are realized and entrenched through legal changes. A punitive common sense becomes legitimized through liberal rationalization that gives form to taken for granted notions of the deservingness of a person to education, support, protection, and care.

The idea of a student needing to be deserving in order to have access to these systems of support points to a fundamental flaw in the conceptualization of schools as protective sites, when protection is premised on the worthiness of a student for that same protection. This inclusion framework regards those students who have been regarded as “criminal” to be unworthy of protection and thus appropriately subject to violent state practices in the name of punishment and security. Often, the school itself facilitates these practices.

Immigrant students who are regarded as “criminal” are subject to punitive outcomes through school forms of discipline such as suspension and expulsion as well as law enforcement punitive practices, such as arrest and deportation. These consequences fit into a security framework where the supposed criminality and dangerousness of students deemed undeserving is harnessed and weaponized to support the imposition of policing agencies and practices within the school. Thus, we must question the very idea of protection when it is premised on the exclusion, policing, and punishment of others and “Othered” people.

An interrelated dynamic which must be explored in future scholarship around this issue involves the inherent precarity of the “deserving status” for racialized immigrant students. Even those students deemed to be deserving are not guaranteed the protections provided through the schools they attend, nor are they guaranteed that their deserving status will not shift to an undeserving category.

The rash imposition of an undeserving status onto individual students is easily achieved when considering the historically and profoundly embedded notions of Black and Brown people as being inherently predisposed toward criminality (Muhammad 2019, Chavez, 2013). These notions live on the very bodies of people who become scrutinized and surveilled for indications of criminality, which makes them subject to policing and eventually punishment once their everyday behaviors are framed to be deviant or criminal (Rios 2011). A long and varied genealogy of discourses and policies articulated through and upheld by racist, xenophobic, classist, and adultist policies and discourses, a small and recent aspect of which I have laid out in this article, uphold and empower this imposition of criminality onto the actions and bodies of young Black and Brown people.

The laws and policies that expand the focus of policing onto students who were previously deemed deserving through liberal discourses but are now considered to be undeserving points to another fallacy of a sanctuary framework that operates through the same state structures that the students need protection from. Through these laws and policies as well as liberal logics of inclusion, sanctuary is linked with policing to the detriment of groups purportedly being provided protection in the first place.

To conclude this article, I emphasize that I write this critical analysis and deconstruction of protection in order to point to the need to radically reenvision the ideas of care in educational spaces. It is my hope that this article serves as an invitation for us (a collective us) to think beyond the common sense of punishment in order to take on an imaginary in line with prison abolitionists to envision educational spaces free of the logics of dehumanization, order, exclusion, and expulsion. A primary step in this exercise in enacting a radical imaginary is to consider who is being left out when we are talking about care, protection, and support for students. Care, when only afforded to certain students, will only serve the dual purpose of creating populations of “deserving” students who prove their deservingness through compliance and “undeserving” students who serve as the basis and legitimizing force for the policing and surveillance of students. It is my belief that another framework of protection, care, and love in educational spaces is possible, one that is not upheld by the oppression and exclusion of others.

My hope is that any administrators, educators, youth workers, counselors, social service providers, staff, and any other educational practitioners who read this article question the discourses that push for them to label their students as good or bad, for the very existence of the very act of categorization is what we must challenge and seek to overthrow. Our interactions with these discourses, whether through our active participation or our “passive” acceptance of them, has implications on the lives and livelihoods of students, for their categorization leaves them open to the state violence of immigration enforcement. As has been articulated in this article, laws and policies do not simply impact the discourses on the ground in a unidirectional manner. Rather, carceral and racialized discourses also affect legal debates that have material and life-altering repercussions for youth caught up in these processes, particularly if they have tenuous legal statuses. For this reason, our individual and collective challenging of and refusal to engage in these discourses is an imperative step toward remaking our schools as places with models for protection decoupled from liberal sanctuary frameworks.

 

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