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Bruce
Morris and Donna
Wells, Editors
Public safety officials have used “zero tolerance”
policies that mandate pre-determined consequences for specific
offenses (regardless of individual circumstances) for well
over a decade to address a number of society’s most pressing
issues, including drugs and illegal weapons possession. The
1990 Gun-Free School Zones Act adopted by Congress is one
such example. Although later ruled unconstitutional by the
U.S. Supreme Court, the Act was intended to apply to anyone
convicted of possessing or discharging a firearm in a school
zone.
Traditionally, such policies have not been directed specifically
at the general public. Indeed, many people would argue, as
some lawyers have with success, that the “one sanction
fits all violations” doctrine is one which would not
be tolerated by a constitutionally protected criminal justice
system that contends with the most heinous of offenses. Nonetheless,
in recent years, a persuasive majority (more than ninety per
cent by some counts) of schools have adopted zero tolerance
policies for students who threaten violence or who carry weapons
onto school property.
According to the Annual Report on School Safety published
by the U.S. Department of Education, 94 percent of schools
have zero-tolerance policies for firearms, 91 percent have
similar policies for other weapons, 88 percent have zero tolerance
policies for drugs 87 percent for alcohol, and 79 percent
have zero tolerance policies for violence and tobacco.
Civil libertarians continue to criticize zero tolerance policies,
arguing that they target minority and disadvantaged students.
A national survey of ten school districts, conducted by California’s
Applied Research Center, concluded that the rate of expulsion
for black students is far higher than for other groups. Jesse
Jackson’s Rainbow/PUSH Coalition and the Rutherford Institute
believe that such policies are not well-conceived and, instead
are simply overreactive.
In a report published in June 2000, by the Civil Rights Project
at Harvard University, the authors opposed zero tolerance
policies, believing that “children are being shut out
of the education system through the application of Zero Tolerance
Policies [sic]…often for minor infractions that pose no threat
to safety, and yet cause them and their families severe hardship…Often
African-American, Latino, and disabled children bear the brunt
of the consequences of these policies.”
According to the Harvard report, “Zero Tolerance [sic]
has become a philosophy that has permeated our schools; it
employs a brutally strict disciplinary model that embraces
harsh punishment over education.” The report indicates
that pursuant to zero tolerance policy enforcement over 3
million children were suspended and 87,000 expelled in 1998
alone. Additionally, according to the authors of the study,
in South Carolina, black children were involved in 61 percent
of disciplinary code violations, yet blacks make up only 42
percent of the student population.
The Association of Resources for Families and Youth in Maryland
agree with the conclusions of the Harvard report, arguing
that such policies merely provide school officials with a
means to expel high-risk students. The U.S. Department of
Education reported that in 1997-98, nearly one in eight black
students was suspended from school, compared to one in 30
white students.
The discrimination aspect is but one argument advanced against
zero tolerance policies. Much of the recent debate centers
on fundamental fairness and the wisdom of eliminating discretion
and flexibility in dealing with disciplinary problems. Violations
of the law, possession of guns and drugs, are one matter,
but what is to be said of a policy that treats nail clippers
and Advil the same as a 9mm semi-automatic and a gram of cocaine?
In some cases, children punished with maximum sanctions for
rules infractions at school under zero tolerance policies
have been treated much more harshly than they would have had
they been charged with commensurate criminal offenses.
At the other end of the spectrum from those adamantly opposed
to zero tolerance are those who seek to expand such policies
to include most lesser offenses and rules violations. Judy
Davidson, author of Comprehensive Crisis Management for
School: An Inservice Guide for All School Personnel, believes
that administrative policy can play a significant role in
prevention as well. She argues that “zero tolerance of
weapons on campus also should be supported by a zero tolerance
policy regarding bullies and harassment, including emotional,
physical, and sexual.” Bill Modzeleski, director of the
U.S. Department of Education’s Safe and Drug-Free Schools
program believes that zero tolerance policies are needed to
maintain order among thousands of children. “I don’t
want my kid in school being threatened ... being harassed
... being bullied.”
As is the case with many policy debates, especially when
policy is implemented, “the devil is in the details.”
Ron Stephens, executive director of the National School Safety
Center, reflects the beliefs of many school officials and
school boards across the country, noting that the majority
of zero tolerance policies are well established and well enforced.
His view is consistent with that of an increasing number of
authorities who believe zero tolerance for law breakers is
essential to maintaining order. But he allows that “zero
tolerance and expulsion don’t go hand in hand.” To him,
the policy “simply means all misbehavior will have some
sanction. It doesn’t mean you bring the maximum punishment
for every transgression.” Arnold Goldstein, director
of the Center for Research on Aggression at Syracuse University,
and a strong supporter zero tolerance policies, appears to
agree. He maintains that the key to making such policies work
is “giving principals the discretion to exercise fairness
and common sense.”
After Congress passed the 1990 Gun-Free School Zones Act
(18 U.S.C. §922(q)(1)(A)), which prohibited possession of
a firearm in a school zone, it was challenged by a student
who carried a firearm onto school property. In U.S. v.
Lopez, the Supreme Court found that the Act exceeded the
authority of Congress under the Commerce Clause of the U.S.
Constitution. As a result of the challenge, in 1994, Congress
passed a new Gun-Free Schools Act (20 U.S.C. §8921) which
mandates that any school receiving Elementary and Secondary
Education Act (ESEA) funds establish a policy requiring a
one-year expulsion for any student carrying a firearm onto
school property.
In Kansas, in 1995, in James v. Unified School District
No. 512, a student expelled for possessing a firearm on
school property sought a temporary restraining order requiring
the board to permit him to take his final exams or, alternatively,
to allow him to be awarded the grades earned through the date
of expulsion. He also sought to be allowed to enroll in school
again the following year. The court ruled in favor of the
school, concluding that the school’s expulsion policy and
process comported with due process requirements.
In 1996, in D.B. v. Clarke County Board of Education,
the Georgia Court of Appeals held that permanent expulsion
of a student for disciplinary reasons does not conflict with
or violate a student’s constitutional right to free public
education or a compulsory school attendance statue, and that
a student’s permanent expulsion for stabbing another student
with a knife does not violate local school policy or a student’s
due process rights.
In London v. Dewitt Public Schools, the 8th Circuit
Court of Appeals found, in 1999, in favor of the schools after
a middle school student and his mother sued alleging due process
violations when the student was suspended and expelled following
an incident with a teacher. The Court ruled that there was
no due process violation, that the student failed to establish
such violations, and that there was no school district discrimination
in its staffing practices.
In Decatur, Illinois, a group of students sued the school
board seeking reinstatement after they were expelled for fighting
on school property during a football game. Earlier this year,
in Fuller v. Decatur Public School Board of Education,
the court found in favor of the board, holding that the expulsion
satisfied procedural due process requirements, that the equal
protection rights of students were not violated, and that
the school board had not relied upon zero tolerance in reaching
its expulsion decision.
As noted by the U.S. Department of Education in the Annual
Report on School Safety, zero tolerance policies alone will
not cure the problem of violence in schools. Instead, schools
must “systematically address the needs of students, school
personnel, the community, and the physical plant of the school.”
For example, 96 percent of public schools now require visitors
to sign in, 80 percent have “closed campus” policies
that prohibit students from leaving during lunch, 53 percent
control access to their buildings, 24 percent control access
to their grounds, and 19 percent conduct drug sweeps. Additionally,
78 percent provide formal violence prevention or reduction
programs for students.
Last fall, after the Baltimore school board adopted a stringent
zero tolerance policy, school-related arrests dropped by 67
percent and school crime decreased 31 percent over the same
period the year before. Whether coincidence or proximate cause,
the relationship of the policy to the significant change merits
consideration. Not all school systems achieve such results.
A Texas study of violence in schools after imposition of zero
tolerance was inconclusive.
- Infringement of constitutional rights: If the offense
includes threats or other forms of speech, policy-makers
and educators must ensure that the policy excludes expression
protected by the First Amendment. Similarly, the punishment
must “fit the crime,” that is, non-violent, non-serious
offenses cannot carry undue penalties.
- Statutory authority and due process: Because sanctions
are predetermined, due process requirements must be adequately
addressed. In Loudon County, Virginia, for example, any
case involving a zero tolerance policy is reviewed first
by the principal, then by an independent panel, next by
the superintendent, and finally, by a special committee
under the school board. Additionally, policies must consider
special needs for students entitled to special consideration
under the Individuals with Disabilities Educational Act.
While the primary purpose of educational institutions is
academic excellence, zero tolerance policies relate to criminal
behavior, hence, such policies are best formulated through
a partnership of school and law enforcement officials. The
consequences tied to zero tolerance policies require that
school boards establish clear, concise processes that include
detailed due process mechanisms. As with any safety initiatives,
when considering zero tolerance, policy-makers should consider:
- the appropriateness of the policy and sanctions in relation
to the ages and grade levels involved;
- the severity of the punishment in relation to the severity
of the offense; and
- the educational and other services needed.
Given the changing demographics of many regions of the Commonwealth,
consideration of imposition of a uniform zero tolerance policy
requires that the interests of a broad constituency be addressed.
Such a policy should be part of a comprehensive strategy to
keep schools safe that also includes prevention and intervention
policies and programs. Additionally, school officials should
recognize that such policies provide opportunities to teach
students about the law, their rights and responsibilities,
and accountability for one’s actions.
When serious problems of crime and violence are confronted
in any community setting, often emotions run high. Responsive
action may be guided more by that emotion than by research
and evaluation. Prudent policy consideration would include
applied research and examination of existing programs. It
may be concluded that zero tolerance policies should address
the most severe offenses, that is, behavior that should result
in automatic suspension or expulsion. These violations include
any that present a danger to other members of the school community.
For lesser offenses or violations, officials should retain
flexibility in responding to specific situations and students.
There is merit in considering a range of sanctions that differentiates
mere action from action with intent to do harm.
It is also important to remember that no student is “cured”
by being removed from school for days or weeks or a year.
Nor can potentially recurring violent behavior be comprehensively
addressed solely through expulsion or suspension. School officials
and policy-makers should consider additional immediate responses,
services or sanctions for students who are suspended or expelled
through a zero tolerance policy, as well as the long term
impact upon the school community of reducing remedial options
in favor of imposing the harshest of penalties. In some instances,
temporarily addressing the school’s problem may only transfer,
and on occasion exacerbate, a chronic condition for the community.
If we accept as a general premise that the purpose of zero
tolerance policies is to create as safe an environment as
possible for the education and social orientation of all children
while removing subjective standards for imposition of punishment,
it would follow that we should consider the wisdom of amending
procedures that treat Advil and nail clippers the same as
cocaine and firearms. We can support absolute zero tolerance
and mandatory expulsion or say “we do not tolerate”
while leaving sanctions open to flexibility and discretion.
Need “zero tolerance” for unacceptable behavior
equate to “zero options” for school officials?
Click here for summary of recent Virginia Legislative history
of “School
Safety Issues: Zero Tolerance.”
Stover, Del. “Despite Charges of Unfairness, Zero Tolerance
is Working,” School Board News, January 25, 2000.
Opportunities Suspended: The Devastating Consequences of
Zero Tolerance and School Discipline, Report by the Advancement
Project and the Civil Rights Project, Harvard University,
2000.
Underwood, Julie. “Zero Tolerance Policies,” Statement
of National School Boards Association General Counsel to the
U.S. Commission on Civil Rights, February 18, 2000.
www.ncsl.org
www.tokeepsafe.com
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