Professor Amy Cyphert Posts Work to SSRN

West Virginia University professor Amy Cyphert recently published three news works to SSRN.

Prisoners of Fate: the Challenges of Creating Change for Children of Incarcerated Parents was published in volume 77 of the Maryland Law Review.

From the abstract:

Children of incarcerated parents, the invisible victims of mass incarceration, suffer tremendous physical, psychological, educational, and financial burdens—detrimental consequences that can continue even long after a parent has been released. Although these children are blameless, policy makers, judges, and prison officials in charge of visitation policies have largely overlooked them. The United States Sentencing Commission Guidelines Manual explicitly instructs judges to ignore children when fashioning their parents’ sentences, and judges have largely hewed to this policy, even in the wake of the 2005 United States v. Booker decision that made those Guidelines merely advisory, not mandatory. Although some scholars have suggested amending the Guidelines or making other legislative changes that would bring children’s interests forward at the sentencing phase, these suggestions are less likely than ever to bear fruit. In light of the Trump Administration’s “tough on crime” rhetoric, new Attorney General Jefferson Sessions’ “law and order” reputation, and Republican control of the House and Senate, policy change that is viewed as “progressive” is highly unlikely. Therefore, this Article proposes two other avenues for change. First, in a new and unique proposal, this Article suggests federal judges can and should independently order the inclusion of Family Impact Statements into a defendant’s presentence investigation report via a heretofore largely unused “catchall provision” of the Federal Rules of Criminal Procedure. Second, this Article makes three modest policy recommendations that are aimed at improving the ability of children to visit their incarcerated parents. Visitation has been shown in studies to be a powerful tool of mitigation for many of the harms children experience when their parents are incarcerated, but visitation rates are woefully low. The options for improving circumstances for children of incarcerated parents may well be limited, but there are viable options, and there is no time to waste.

Offensively Objective: The Problem of Applying TItle IX to Very Young Students was published in volume 51 of the Family Law Quarterly.

From the Abstract:

The headlines are full of stories of children as young as kindergarten being suspended from school for “sexual harassment ” for behavior that is largely age-appropriate and seemingly innocent. School officials claim their hands are tied by zero tolerance policies that give them no discretion. This Article explores the history of Title IX, which bans gender discrimination, including sexual harassment, in our nation’s public schools, including elementary schools. Despite guidance from the Department of Education that school officials should consider the age of the children involved when sexual harassment is alleged and should not overreact, and despite the reticence of federal courts to impose liability on schools in these cases, many administrators continue to overcorrect out of a fear of litigation. Justice Kennedy predicted this fear in his dissent from the seminal Title IX sexual harassment case that provided for school district liability for peer-on-peer sexual harassment. The disciplinary codes that attempt to respond to Title IX’s mandate that schools disseminate policies against sexual harassment are part of the problem, as many are vague and overly broad. Ultimately, lawyers may not be successful in challenging suspensions of young children for perceived violations of Title IX in court, though the threat of such litigation has been powerful in many of the more publicized cases. Regardless, there is still a role for attorneys to play as advocates for changing the system as a whole, and moving away from zero tolerance policies when it comes to our youngest students.

Addressing Racial Disparities in Preschool Suspension and Expulsion Rates was published in volume 82 of the Tennessee Law Review.

From the Abstract:

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 procedurescan 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.