Where Do We Draw the Line When It Comes to Zero Tolerance in Schools?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 9, 2016

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Children arriving at schoolSchools often adopt “zero tolerance” policies to enforce rules they deem to be particularly important. Critics argue that “zero tolerance” equates with “zero thinking.” Rather than exercising the discretion and sound judgment for which school officials are paid, the application of “one size fits all, no exception” policies shields administrators from the burden of making decisions.

Zero tolerance policies are a questionable means of achieving worthy ends. Keeping drugs out of schools is a desirable goal, but zero tolerance policies have resulted in children being expelled or banished to alternative schools for taking Tylenol or Midol. Surely a school principal should know the difference between Ecstasy and aspirin and should be capable of treating them differently.

Sexual harassment should not be tolerated in schools, but suspending a 6-year-old for singing the popular song lyric “I’m sexy and I know it” is an inappropriate response to conduct that could not reasonably have been viewed as harassing anyone. Applying zero tolerance laws to speech has the unfortunate effect of punishing the exercise of free expression, a right that is limited but not lost in a public school.

Most people agree that weapons should be banned from schools. A strong argument can also be made for banning “lookalike firearms” that might inspire fear in other children. But when zero tolerance laws result in the suspension of a 10-year-old for pointing his finger at another student and pretending to shoot, or of an 8-year-old for rolling up a piece of paper and pretending it was a gun, intolerance of guns may have gone too far. Other students do not feel threatened by fingers or paper, and interrupting an education for engaging in harmless behavior seems counterproductive.

Student Suspended for Chewing Bread

The most recent zero tolerance headline grabber involves an elementary student in Maryland who chewed a breakfast bar into the shape of a gun and pretended to shoot his fellow students with it. A state court judge upheld the student’s two-day suspension against a challenge that the student’s due process rights were violated.

Had this been the student’s only transgression, the court might have ruled differently. The judge determined, however, that “brandishing partially consumed pastry” was only the latest incident in the 7-year-old’s “history of escalating behavioral issues.”  The court also agreed that the student’s behavior was “disruptive,” a word that schools often invoke in light of Supreme Court precedent that recognizes the right of schools to impair the free speech rights of students when necessary to avoid disruption of the classroom.

The nature of the alleged disruption, as well as the details of the student’s prior misconduct, are unclear. The child’s family asserts that the assistant principal who imposed the suspension said nothing about past incidents and focused his explanation solely on the student’s act of pointing a pastry gun at other students. Since the family’s attorney was not allowed to question the assistant principal as a witness, the record may be inadequate to draw meaningful conclusions about the school’s actual motivation for imposing the suspension.

The Supreme Court views “due process” as a flexible concept that depends upon the nature of the deprivation at issue. The deprivation of freedom that a criminal trial places at risk requires more procedural safeguards than the deprivation of two days of education. According to the Maryland judge, the relatively insignificant punishment at stake did not justify a full-blown hearing at which lawyers could question school administrators about the statements they made. The unfortunate consequence of that ruling is that explanations go unchallenged which might be exposed as questionable or untruthful if the administrators were cross-examined.

Discretion versus Zero Tolerance

The boy was suspended less than three months after the mass shooting at Sandy Hook Elementary School in Newtown, Connecticut. That tragedy may have contributed to the Maryland school’s zero tolerance attitude, even though the Sandy Hook shooting was carried out by a 20-year-old using an assault rifle, not by a 7-year-old holding a Pop Tart.

Zero tolerance policies are incapable of distinguishing between harmful and harmless behavior, but school administrators should know the difference. Taking a Tylenol, singing a popular song lyric, and playing with an imaginary gun are not behaviors that threaten other students. Nor are they likely to be disruptive, at least as compared to other commonplace behaviors in which elementary students engage.

It is with good reason that the Justice Department has urged schools to abandon their zealous enforcement of zero tolerance policies. Some administrators are reluctant to do so because zero tolerance policies allow administrators to deflect blame for their actions by saying “I’m just enforcing the policy.” But the Due Process Clause requires schools to treat students fairly. That means exercising judgment to distinguish behaviors that merit punishment from those that don’t. The wise exercise of discretion might be more difficult than the blind enforcement of a zero tolerance policy, but it is also more just.

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