The Critical Role of Race in Juvenile Justice

Excerpt from the Texas Education Code Section 28.0022, effective December 02, 2021:

“(4) a teacher, administrator, or other employee of a state agency, school district, or open-enrollment charter school may not:

(A) require or make part of a course inculcation in the concept that:

(vii) the advent of slavery in the territory that is now the United States constituted the true founding of the United States; or

(viii) with respect to their relationship to American values, slavery and racism are anything other than deviations from, betrayals of, or failures to live up to the authentic founding principles of the United States, which include liberty and equality.” See Tex. Educ. Code § 28.0022(a)(4).

“Not everything that is faced can be changed, but nothing can be changed until it is faced.”  — James Baldwin

Race has played and continues to play a significant role in the Texas juvenile justice system. Children of color, particularly African American children, comprise a disproportionately higher percentage of children referred to the juvenile justice system.  They also comprise a disproportionately higher percentage of children who receive the most severe consequences. It is critical to understand this fact. If we are to improve the system, we must honestly examine where we are and where we came from. Only then can positive systemic change begin to happen.

Harris County, a Case Study

Harris County has a population of approximately 4.7 million. According to the U.S. Census Bureau in its July 01, 2021, population estimates, 43.7% are Hispanic/Latino, 28.7% are White alone (not Hispanic or Latino), and 20.0% are African American alone.  One might think that juvenile court referrals in Harris County would track similarly to these demographics.  However, the most recent Harris County Juvenile Probation Annual Report from 2020 (Report) shows a distinct contrast between the demographics of the county as a whole and the demographics of the children referred to Harris County Juvenile Court.

According to the Report, there were a total of 3,830 referrals made to juvenile court in 2020. That was down significantly from 2019, when a total of 6,579 referrals were made. It is likely that the pandemic and the closing of many schools for part of the year contributed to the drop in referrals.

Of those 3,830 referrals in 2020, 1,698 were for Hispanic/Latino children, 1,662 were for African American children, and 404 were for White children, with the remaining 66 referrals classified as other. By percentage, that breaks down to 44.3% Hispanic/Latino, 43.3% African American, and 10.5% White.

The disparity is even greater for children who were detained that year in Harris County. The Report shows children of color were more likely to lose their liberty.  Of all the children who were detained, 47.4% were African American, 44.2% were Hispanic or Latino, and 7.21% were White.

African American girls had it worst of all. Of the girls detained, more than half, or 52.3%, were African American, while 34.9% were Hispanic/Latino and 10.5% were White.

This brief case study is illustrative as to how significant and troubling the racial inequities are for children of color entering the juvenile justice system. Other counties, such as Dallas County, have similar statistics.

And while it is important understand the racial disparities in the juvenile justice system as they currently exist, it is more important to answer the question, why do they exist? The solution to this problem may be complex, but the answer as to why we have this problem, even into the 21st century, is not.

Racial disparities and unequal treatment of people of color, particularly African Americans, have existed since the inception of Texas.

Contrary to what the newly enacted Section 28.0022 of the Education Code claims, slavery and racism are not a deviation, betrayal, or failure of our founding values. Slavery and racism are an integral part of our founding values. The ramifications of these values have permeated our systems throughout this state’s history and continue to do so today.

Republic of Texas Constitution

The Constitution of the Republic of Texas was drafted on March 1, 1836, adopted 15 days later, and ratified by the people of Texas in September of that year. The drafters of the constitution borrowed many concepts from the U.S. Constitution, such as a preamble and separation powers among three branches of government. There were also provisions that deviated from the U.S. Constitution.

What is clear, though, is that Texas aggressively sought to be a slave holding republic. This is made plain in section 9 of the constitution, under the “General Provisions,” which states:

“All persons of color who were slaves for life previous to their emigration to Texas, and who are now held in bondage, shall remain in the like state of servitude, provide the said slave shall be the bona fide property of the person so holding said slave as aforesaid. Congress shall pass no laws to prohibit emigrants from the United States of America from bringing their slaves into the Republic with them, and holding them by the same tenure by which such slaves were held in the United States; nor shall Congress have power to emancipate slaves; nor shall any slave-holder be allowed to emancipate his or her slave or slaves, without the consent of Congress, unless he or she shall send his or her slave or slaves without the limits of the Republic. No free person of African descent, either in whole or in part, shall be permitted to reside permanently in the Republic, without the consent of Congress, and the importation or admission of Africans or negroes into this Republic, excepting from the United States of America, is forever prohibited, and declared to be piracy.”

For its brief existence, the Republic of Texas was a slave holding, whites-only nation. If the above still leaves doubt that racism and white supremacy were a part of this state’s founding values, Texas’ declaration of secession 25 years later should erase those doubts.

“A Declaration of the causes which impel the State of Texas to secede from the Federal Union”

On February 2, 1861, the state of Texas seceded from the United States of America. The document proclaiming the secession, with the above cumbersome title, listed Texas’ various grievances against the Union. In reality, there was only one reason that Texas left the Union. The reason was slavery. Texas seceded because it wanted to maintain that peculiar institution. Texas, along with the other seceding states, was concerned that slavery would eventually be abolished in the expanding United States of America of the mid-19th century.

The excerpt below from Texas’ declaration of secession makes clear the state’s intent behind secession:

“We hold as undeniable truths that the governments of the various States, and of the confederacy itself, were established exclusively by the white race, for themselves and their posterity; that the African race had no agency in their establishment; that they were rightfully held and regarded as an inferior and dependent race, and in that condition only could their existence in this country be rendered beneficial or tolerable.

That in this free government all white men are and of right ought to be entitled to equal civil and political rights; that the servitude of the African race, as existing in these States, is mutually beneficial to both bond and free, and is abundantly authorized and justified by the experience of mankind, and the revealed will of the Almighty Creator, as recognized by all Christian nations; while the destruction of the existing relations between the two races, as advocated by our sectional enemies, would bring inevitable calamities upon both and desolation upon the fifteen slave-holding States.”

Racial Disparities Continue Into the 20th Century and Beyond

Texas’ foundational racism has touched every part of society, including the juvenile justice system. History is replete with examples of disparate and discriminatory treatment toward children of color, especially towards African Americans.

For instance, in the 1920s, some of the children who had been committed to the State Juvenile Training School in Gatesville were “leased out” to work on local farms. Most of those “leased out” were African American. The practice of leasing inmates was essentially slavery by another name. Another example is the 1913 Juvenile Act, which states that “the white boys shall be kept, worked and educated entirely separate from the boys of the other races, and shall be kept apart in all respects.”

African American girls didn’t fare much better. In the first part of the 20th century, because of discrimination, African American girls were not allowed into training schools. Thus, African American girls who were arrested would likely either be placed in adult jail or released into the community.

In 1927, the Texas Legislature finally authorized the construction of a training school specifically for African American girls. This authorization was meaningless, however, at least for the next 20 years. It took that long for the legislature to provide funding for the construction. After the school was built, and then through most of its existence, the administrators had to manage with less funding and fewer physical resources than the other schools.

More recently, in this century, we can see inequalities in the commitment of children to the state’s carceral system for juveniles, the Texas Juvenile Justice Department (TJJD). TJJD’s most recent profile of new commitments is for FY 2013-2017. These statistics show that for that time-period, 43.7% of new commitments were Hispanic or Latino, 37% were African American, and only 18.8% were White. Compare that with the Texas demographic data from the 2020 census, which shows the population to be 41% White alone (not Hispanic or Latino), 39.7% Hispanic or Latino, and 12.9% African American.

Truth

To deny that slavery and racism have been integral parts of Texas’ legacy is to deny the truth. History and statistics bear this out. As James Baldwin intimated, we must face this uncomfortable truth if we are to make positive changes. Turning a blind eye and forcing teachers to teach a whitewashed version of our state’s history does a disservice not just to our children of color, but to all children. And it will likely doom us to repeat those same injustices over and over again. We can, and must, do better.

The opinions expressed in our published works are those of the author(s) and do not necessarily reflect the opinions of TCDLA and/or its editors.

TCDLA
TCDLA
Rubén V. Castañeda
Rubén V. Castañeda
Rubén V. Castañeda serves as Deputy Juvenile Public Defender with the Travis County Juvenile Public Defender’s Office. He has been defending children in that capacity since 1998. He was board certified in Juvenile Law in 2001 and has been a member of TCDLA since 1995. He can be reached at or 512-854-4128.

Rubén V. Castañeda serves as Deputy Juvenile Public Defender with the Travis County Juvenile Public Defender’s Office. He has been defending children in that capacity since 1998. He was board certified in Juvenile Law in 2001 and has been a member of TCDLA since 1995. He can be reached at or 512-854-4128.

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