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Citation: 10 Kan. J.L. & Pub. Pol'y 369 2000
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Through a Glass Darkly: Educating with Zero
Tolerance
James M. Peden
I. INTRODUCTION
Despite recent statistics showing a decrease of student violence in our public
schools, isolated incidents of extreme violence and loss of life have occupied the public
consciousness the last two years.' The tragedies of Jonesboro, Arkansas; 2 West Paducah,
Kentucky; 3 Littleton, Colorado;4 and Flint, Michigan5 are emblazoned in the hearts of
parents across the nation. Statistics notwithstanding, students in public schools fear for
their own personal safety.6
As a nation, we search for a reason B something which can explain why our youth
are able to take another's life B seemingly without conscience or remorse. The problem
is all the more poignant because these violent acts are often perpetrated by offenders of
teenage or younger years upon innocent victims of the same age. We ponder these issues
because the incidents themselves are so shocking to us, and also because we hope that in
ascertaining a cause we can perhaps formulate a cure: anything that will prevent such
things from happening in the future. Yet these incidents elude analysis. We cannot find
the one cause that is creating this change in our children. Unable to find the cause of this
disease, we attempt to treat the symptoms.
The methods that we as a society are currently employing to stop this appalling
phenomenon are variations on traditional themes. The traditional juvenile court system
appears to offer inadequate solutions to youth problems so serious and pervasive that they
are outside the parameters in which the system was designed to operate.7 One solution
has been to suggest that this new type of youthful offender be treated and tried as an adult
criminal! Another solution has been advanced to hold parents criminally responsible for
the actions of their children.9 Our public schools are attacking the problem from a slightly
different perspective." ° Nationwide, states have enacted zero tolerance statutes and
school boards have enacted zero tolerance disciplinary policies." On their face, these
policies were enacted to "create a safer learning environment in the classroom."' 2 In
operation, the zero tolerance disciplinary
policies send a confusing message to
parents and children about the extent and
James M.Peden, Professor of Law, Thomas M.
operation of
our
schools'
disciplinary
Cooley Law
School. J.D., University of Toledo
authoity.College
of Law: B.A., University of Michigan.
authority.
Research Assistants: Judy Bernstein and Vickie
The most problematic feature of
Armstrong.
zero tolerance policies seems to be the
V
HeinOnline -- 10 Kan. J.L. & Pub. Pol'y 369 2000
369
Peden
manner in which they are applied. School administrators have extended the basic concept
of zero tolerance, the prevention of armed violence and possession of drugs, to include
situations that are not within the purview of the original purpose. Some of these
applications are highly questionable. For example, the suspension of kindergarten
students from school for playing "cops and robbers" and pointing their fingers in the
timeless imitation of guns while yelling, "bang, you're dead," causes us to question the
common sense of such an extreme treatment of this classic childlike behavior.
The actions of the school authorities in such a situation make us uneasy. We sense
unfairness because of the seeming innocence of the children's game compared to the
administrative response. Because the students are being punished for behavior that is
proscribed, we understandably tend to evaluate the situation in light of our comprehension
of the criminal justice system and how we believe it operates. Hence, possible
overreaction on the part of the school authorities offends our sense of justice, for, "a
precept ofjustice [is] that punishment for [a] crime should be graduated and proportioned
to the offense."' 3
Within the criminal justice system, proportionality of response and individual
rights are constitutionally protected. Students in school as well as out of school enjoy
constitutional protection just as anyone else in our society. 4 Therefore it is unsurprising
that constitutional issues are implicated when zero tolerance policies are challenged. In
the short term, these policies can result in inequities that exceed bounds of common sense
and violate the rights of individual students. In the long term, if these policies are allowed
to expand in scope and execution, they can have a serious deleterious effect not only
within the confines of our educational system, but in our society at large since their impact
is most keenly felt by those who, as adults, will know and be acclimated to a system of
justice that does not focus on the individual, but only the institution.
That is why the educational environment of our schools is so important, both to
the individual student and to our society. As stated so eloquently in Brown v. Boardof
Education,5 "it is doubtful that any child may reasonably be expected to succeed in life
if he is denied the opportunity of an education."' 6 Education "is a principal instrument in
awakening the child to cultural values, in preparing him for later professional training, and
in helping him to adjust normally to his environment."' 7
Zero tolerance policies require that students be suspended or expelled for a variety
of student behaviors." Although this may be considered an efficient way to maintain
school discipline since "troublemakers" are removed from the educational environment
and a clear message is sent to would-be troublemakers that no leniency will be
forthcoming to those who transgress the rules. There is growing concern that, "as applied,
these laws [may be] overly inclusive and may affect students who are not dangerous or
not engaged in violent acts . . . . 9 "Too often, the remedies being proposed by
lawmakers offer, at best, short-term [cookie cutter] solutions with potentially devastating
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Through a Glass Darkly
long-term effects on individual students."2 ° We should not minimize the effect that
expulsion or suspension from school has on a young life. Aside from interrupting a
student's academic progress, removal from school for any appreciable time as a
disciplinary penalty can deprive her of the society of her peers just as incarceration does
the criminal: "There is no question that a high school student who is punished by
expulsion might well suffer more injury than one convicted of a criminal offense."'" It
therefore follows that courts are willing to extend protection of students' individual rights
in cases of suspension and expulsion: "Equally indisputable is the proposition that the
Fourteenth Amendment protects the rights of students against encroachment by school
officials." 22
This article will show that disciplinary policies termed "zero tolerance," define
punishable behavior in subjective terms. Consequently, enforcement of these zero
tolerance policies can violate'the constitutional rights of our students. As will be shown,
local authorities have extended the zero tolerance disciplinary policies to include any
behavior the school administration deems inappropriate. For this reason, students face a
situation every day while attending school that is fraught with unfairness. In fact, zero
tolerance policies have gone to such extremes that a child can be suspended for bringing
in an unfamiliar brand of lemon drops to school. 3
II. ZERO TOLERANCE: Saying No; Absolutely
Zero tolerance is a term that is used to characterize an institution's responses to
breaches in the code of conduct which the institution recognizes as being fundamental to
its operation. It carries with it a connotation of absolutism and inflexibility which implies
that once parameters of conduct have been established for any particular institution, no
activity which occurs outside those parameters will be allowed. A code of conduct
premised on such a concept does not contemplate an individual's intent. There is very
little differentiation in the treatment of individuals who may well exhibit different degrees
of culpability. Rather, a type of strict liability evolves in which uniform punishment is
levied against individuals premised only upon a showing that they have broken the rules.
"The first use ofthe term [zero tolerance] recorded in the Lexis-Nexis national newspaper
database was in 1983, when the Navy reassigned 40 submarine crew members for
suspected drug abuse. 2 4 "In 1986 zero tolerance was picked up and used by a U.S.
attorney in San Diego as the title of a program developed to impound seacraft carrying
any amount of drugs." 5 The program "authorized customs officials to seize the boats,
automobiles, and passports of anyone crossing the border with even trace amounts of
drugs and to charge those individuals in federal court. ' ' 26 By 1988, "the program had
received national attention., 27 The term zero tolerance "took hold quickly and within
months was being applied to issues as diverse as environmental pollution, trespassing,
skateboarding, racial intolerance, homelessness, sexual harassment, and boom boxes."28
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It entered the lexicon of our society as a catch phrase of the nineties. Its usage was so
widespread and its meaning so universally understood, that Congress applied it to
disciplinary sanctions students would face for being in possession of weapons at school
when it enacted legislation to prohibit students from bringing firearms to school.
A. The Gun-Free School Act of 1994
Most state and local zero tolerance school policies have their genesis in the Gun
Free School Act of 1994.29 When drafting this Act, Congress intended that it "be the
policy of the United States that a high quality education for all individuals and a fair and
equal opportunity to obtain that education are a societal good, are a moral imperative, and
[will] improve the life of every individual, because the quality of our individual lives
ultimately depends on the quality of the lives of others."30 Congress, in its attempt to
garner support for the Act, used a 'carrot and stick' approach.3 The 'carrot,' of course,
being the delivery of federal dollars for state projects, and the 'stick,' the threat to
withhold those funds if legislation"32 on a statutory level did not address violence in the
schools.33
The Act mandated that all states receiving Elementary and Secondary Education
Act (ESEA) funds adopt an expulsion policy of a period of not less than one year for a
student who is determined to have brought a weapon to a school under the jurisdiction of
local educational agencies in that State, except that such State law shall allow the chief
administering officer of such local educational agency to modify such expulsion
requirement for a student on a case-by-case basis.34
The Act specifically defines weapons as 'firearms' including a gun, bomb,
grenade, rocket, or missile.35 The states are required to provide "a description of the
circumstances surrounding expulsions [imposed] State law required by subsection (b),
including (A) the name of the school concerned; (B) the number of students expelled from
such school; and (C) the type of weapons concerned."36 By the end of 1995, all 50 states
had complied with the federal mandate.37
The Act itself does not require zero tolerance in the strictest sense of that term, that
of requiring absolute punishment (e.g. expulsion from school) for a particular offense.3"
Rather, the Act permits local schools to modify any expulsion order for its students on a
case-by-case basis.39 However, individual states and school boards have used the Act as
an impetus to go far beyond the federal laws by enacting policies that are much broader
in scope than the procedures set forth by the Act. "[S]ubsequent legislation has begun to
broaden the definition of a weapon and to add additional implementation procedures to
give greater discretion to local school administrators."4
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B. A Good Idea Gone Bad
Although the Act calls for adjudication of violations on a case-by-case basis,4
most school policies tend to lump types of offenses together, either because of the overinclusive definitions contained in a policy, or the way in which the definitions are
interpreted by the professional teaching staff.42 Educators can fail to make distinctions
43
between a weapon and a tool, or a mind-altering drug and an over-the-counter remedy.
Students in possession of a butter knife for use at lunch are thus treated the same as
students possessing a throwing knife, because either can be construed as a weapon." A
student offering LSD to his classmates can be treated the same as one offering aspirin to
a friend with a headache, because both involve possession of a drug.45 In these situations,
it seems that school officials are unable to differentiate between good kids who may be
acting imprudently, and the unruly delinquent who can be dangerous. The following are
a few examples of this phenomenon.
Ben Rattner was a student at the Blue Ridge Middle School in Loudon County,
Virginia. ' A friend at school confided in him that she intended to commit suicide with
a knife she had brought to school. 47 Ben convinced her to give him the knife she was
going to use, and he put it in his locker. 48 During the course of the day, he went to his
locker to change books and another student saw the knife in his locker and reported it to
the principal.49 While his school praised him for his actions, the local school board
decided that he had to be suspended because he did not immediately turn the knife over
to the school officials.5 He was suspended from school for sixteen weeks.5 ' Ben's
mother said, "I couldn't believe it. I was totally appalled that they would even consider
suspending him."52
Six-year-old Seamus Morris, a student at Taylor Elementary school in Colorado
Springs, Colorado, was suspended for offering lemon drops to a classmate because his
teacher did not recognize the brand of candy that he had offered (although a spokesman
for St. Claire's Lemon Tarts Candy Company offered that the candy was sold in
Colorado's largest grocery store chain).53 The school officials, in upholding a half-day
suspension for Seamus, informed his mother that a child who brings candy to school is
compared to a teenager who brings a gun to school.'
The school district officials in Sayreville, New Jersey, upheld an elementary
school principal's decision to suspend four six-year-old kindergarten students for three
days for pointing their fingers at each other as mock guns, while playing "cops and
robbers."55 They allegedly made a statement that they wanted to shoot each other.56 Other
students reported their behavior to a teacher.57 District Superintendent William Bauer
stated, "This is a no-tolerance policy. We're very firm on weapons and threats .... Given
the climate of our society, we cannot take any of these statements in a light manner."58
Ashley Smith was suspended for ten days from school in Cobb County, Georgia, "for
bringing a Tweety Bird key chain to school." 59 It wasn't bringing Tweety Bird to school
Peden
that resulted in the suspension, but "the lightweight chain connecting a key chain to her
wallet."'6° "In Cobb County school's definition of zero tolerance, this chain is a weapon
in the same category as a set of nunchucks or even a sword."'
A twelve-year-old boy was suspended from school in Chesapeake, Virginia,
because he waived a stapler on the school bus, pretending that it was a gun.62 He could
not enroll again before May of 2000.63
Tyler Hagen, a thirteen-year-old seventh grader at Arroyo Seco Junior High
School in the Hart Union High School district of Los Angeles, was expelled.' He got in
trouble because a friend gave him a bag of marijuana to get rid of, and Tyler took it to his
parents. 65 They contacted the Los Angeles Sheriffs Department, and when the
Department informed the school authorities, they took action.66 They gave Tyler a choice
of either enrolling in another school or attending a special class at his school for kids in
trouble.67 The assistant superintendent for the district said, "If kids are in possession of
drugs at school, our board has taken a 'zero tolerance' stand. The principals are directed
to bring forth a student for expulsion unless they find circumstances that make them think
expulsion is not appropriate." '68
The Piscataway, New Jersey School Board expelled a twelve-year-old girl when
she pretended to sell LSD.69 The decision was appealed to the New Jersey Commissioner
of Education, who reversed the expulsion.7" The school board appealed that decision to
the New Jersey State Board of Education, who upheld the commissioner's decision. 7
Both the commissioner and the state board felt that the Piscataway Board had not taken
into account the student's age, and that it was the student's first offense of any kind.72
Cases such as these, and there are more than just a few, highlight the major problems of
zero tolerance applications in the school environment.73 Are the terms of the policies so
ambiguous that individual school officials are left to interpret them, and therefore, school
administrators lack clear guidelines for zero tolerance exceptions and situations where
they are permitted to use their best judgment? Or is it that the school administrators
would rather err on the side of overly broad application so as to preserve the policy itself,
fearing that if each situation were considered in detail, and exceptions or mitigating
factors taken into consideration, soon there would be no policy left to apply in truly
disturbing occurrences? In either case, ambiguous terminology or overly broad
application creates an atmosphere which is counterproductive to instilling in our students
a sense of justice when interacting with authority and raises constitutional concerns.
C. Constitutional Rights of Students
The Supreme Court has stated that "educating the young for citizenship is reason
for scrupulous protection of constitutional freedoms of the individual, if we are not to
strangle the free mind as its source and teach youth to discount important principles of our
government as mere platitudes."74 Even so, the Court has been cautious, even ambivalent
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in its decisions concerning issues of school discipline. On one hand, the Court has found
that the various states and local school boards should be granted great deference in school
discipline." On the other hand, while it is true that students throughout the years of their
primary and secondary education are minors, the Court has determined that they have
cognizable constitutional rights.76 Although there is no specific guarantee of an education
under the federal Constitution, public education becomes a right once a state undertakes
a responsibility to provide it." Attendant to this right to an education are concomitant
property and liberty rights protected by the Fifth and Fourteenth Amendments.7" The
Fourteenth Amendment dictates that students be provided both substantive and procedural
protections.79 It is therefore necessary that zero tolerance policies, on their face and as
they are implemented, not abridge the students' rights to due process or equal protection.
Procedural due process is concerned primarily with issues of notice,
representation, and fair and impartial hearings." Procedural due process problems can
occur in the manner in which zero tolerance violations are treated by the schools and
school boards. The basic principles of procedural due process - adequate notice, a fair
and impartial hearing, and the right to be heard - are sometimes lost in the bureaucratic
manner in which violations are "processed." Teachers are usually, but not always, the
individuals who make the initial decision of whether or not a student is in violation of the
rules. If the teachers feel that the rules leave them no discretion, they will typically turn
the matter over to the principal. The principal determines whether or not there is a
violation, and if there is, what punishment the student will receive. By local board rule,
expulsions have to be reviewed by the local school board and a hearing may be had, the
conduct of which may not afford adequate protection of students' Fifth, Sixth, and
Fourteenth Amendment rights.
Finally, the fact that the teachers are hired by the principals who are hired by the
board, raises the issue of whether or not a student can receive a fair and impartial hearing
in a system which is inherently lacking a means of checks and balances. It is the school
board that approves the policies, hears the cases involving violations of those policies and
then determines the punishment for the individual student.
"Substantive due process issues are raised primarily by challenges to the definition
of criminality and to the use and severity of sanctions."'" Substantive due process issues
raised by zero tolerance cases involve the specificity of which the proscribed behavior
is set forth and the circumstances under which students can be expelled or suspended.
Because of the severe effects that expulsion can have on a student, there are also Eighth
Amendment implications on zero tolerance policies. The Eighth Amendment is
applicable to the states, of course, by reason of the Due Process Clause of the Fourteenth
Amendment.8 2 Although historically both state and federal courts have reserved
application of the Eighth Amendment to criminal cases, recent decisions may require an
extension of its protection to non-criminal situations. In interpreting the Eighth
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Amendment the courts have held as "a precept of justice that punishment for crime
should be graduated and proportioned to offense. 83 Consequently, "[a] punishment out
of all proportion to the offense may bring it within the ban against cruel and unusual
punishment."" This basic principle of proportionality is deeply rooted in our
jurisprudence and for good reason. We require that our legal system protect the rights and
freedoms of the individual while also maintaining order in our society. An exaggerated
punishment stemming from an inflexible policy can eventually make the law or policy
itself unenforceable; and worse, it disturbs our confidence in the system as a whole.
D. A Criminal Law Analogy
Zero tolerance policies resemble criminal statutes in purpose, structure, and
application. In both situations, offenses are statutory, meaning that a legislative body has
made the decision to proscribe certain behavior and provide punishment for the
transgressors. The impetus for proscribing certain behavior is the preservation of order
within an institution. Criminal statutes are created to maintain order in society, and zero
tolerance polices are adopted to preserve order in the school environment.
In criminal law, there is the sub-category of offenses commonly referred to as
"strict liability" offenses. These are particularly analogous to zero tolerance policies
because these statutory offenses allow conviction and punishment without regard to intent.
The Supreme Court has often addressed the constitutionality of strict liability criminal
statutes, usually because of challenges based upon alleged due process violations.
Although the Court has consistently upheld the constitutionality of these laws, it has done
so with qualification.
When a strict liability statute under review proscribes behavior that is closely
associated with a specific constitutional right, the Court has proceeded cautiously, and
although finding the statute constitutional, is prepared to examine the manner in which
the statute has been applied. Hence, in Staples v. United States, 5 which involved a
violation of the National Firearm Act,86 the Court recognized that although the statute
specifically forbade possession of "any weapon which shoots . . or can be readily
restored to shoot, automatically more than one shot without manual reloading, by a single
function of the trigger," 87 the state had to prove the additional element of scienterwhich
resulted from an interpretation of the statutory construction. 8
The Court interpreted the statute taking into account the fact that, although the
government had characterized the statute as a strict liability "public welfare offense," 9
the offense carried a possible ten-year prison sentence and was concerned with "a long
tradition of widespread lawful gun ownership by private individuals...."' Furthermore,
because the legislature had not specifically included in the statute a requirement of mens
rea, the Court relied upon common law to engraft a requirement of mens rea or intent to
possess such a weapon. 9 '
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In Holdridge v. United States,92 the Eighth Circuit set forth the defining
characteristics of a constitutional strict liability statute, which, although not a test per se,
can be useful in identifying and evaluating such legislative acts.93 Characteristically, a
criminal statute imposes strict liability whenever, (1) the statute omits mention of intent;
(2) and the statute involves a policy matter; (3) it imposes a reasonable standard,
adherence to which may be expected; (4) and the statute imposes a relatively minor
penalty; (5) the violation and punishment under the statute do not carry with it
stigmatization (as would a felony); (6) and that it not be taken directly from the common
law; and (7) it supports some legislative purpose."
These same factors are easily identifiable in zero tolerance school policies.
However, of particular concern is the reasonableness of the "standards" these policies
require, the seriousness of the penalties they entail, and the stigmatization they can create..
If the terms of these school policies are ambiguous, or if expulsion from school is a
common penalty under their provisions, and if the transgression becomes part of the
students' permanent record then these policies carry with them both substantive and
procedural due process implications. In essence, this is the thrust of the Supreme Court's
decision in Goss, which dealt with student suspensions and expulsions, as distinguished
from its decision in Ingraham,which was primarily concerned with school disciplinary
measures other than expulsion and suspension.9"
III. CONSTITUTIONAL ANALYSIS
A. Procedural Due Process
The authority possessed by the State to proscribe and enforce standards of conduct
in its schools, although admittedly very broad, must be exercised in a manner consistent
with the Constitution. In West VirginiaState BoardofEducation v. Barnette,96 the Court
held that, "[t]he Fourteenth Amendment, as now applied to the States, protects the citizen
97
against the State itself and all of its creatures - Boards of Education not excepted."
"These [Boards ofEducation] have important, delicate and highly discretionary functions,
but none that they may not perform within the limits of the Bill of Rights. '9
In Goss v. Lopez,99 the Supreme Court considered the extent to which the
Fourteenth Amendment guarantees due process rights in relation to students' liberty and
property interests. " "Among other things, the State is constrained to recognize a
student's legitimate entitlement to a public education as a property interest which is
protected by the Due Process Clause .... ."0'Although there is no constitutional right to
an education, when the state provides and compels free schooling, students have a
property right in that education and that right cannot be taken away without due
process.102
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Thus, the Court in Goss identified "the right of a student not to be suspended for
as much as a single day without notice and a due process hearing either before or
promptly following the suspension. ' 3 The Court held that public school officials must
follow minimal due process procedures when suspending a student for 10 days or less"
and emphasized that it was only responding to the issue of short-term suspensions.' 5 The
Court advised school officials that "[1]onger suspensions or expulsions for the remainder
of the school term, or permanently, may require more formal procedures."' ' The Court
also ruled that students facing such suspensions must at least receive oral or written notice
of charges against them and an opportunity for a hearing to present their side regarding
the charges. 07
' "The notice should contain a statement of the specific charges and grounds
which, if proven, would justify expulsion under the regulations .... ., 08 "[T]he right to
notice and a hearing is so fundamental to the conduct of our society,"' that unless there
is an immediate danger to the public, the school board should exercise "at least the
fundamental principles of fairness by giving.. .students notice of the charges and [a right]
to be heard . ... " 0 School authorities, in failing to adhere to the principles of
fundamental fairness, "can well break the spirits of the expelled students and of others
familiar with the injustice and do inestimable harm to their education."'II
Although in Ingraham the Supreme Court chose to adopt a restrictive rather than
an expansive view of those constitutional rights that students have in disciplinary cases
other than those in which expulsion or suspension are possible, it did hold that, "[Children
have] a strong interest in [the] procedural safeguards that minimize the risk of wrongful
punishment ... ."12 Therefore, parties whose rights are to be affected are entitled to be
heard; and in order that they may enjoy that right, they must be notified.' ' Thus, "it must
be conceded... [that governmental power to expel students] is not unlimited and cannot
be arbitrarily exercised.""'
In Nevares v. San Marcos ConsolidatedIndependentSchool District,"5 the court
held that a student's constitutionally protected property interest in education was
implicated upon his removal from regular classes and placement in an alternative
education program after the school authorities were notified that the student had been
detained by police for committing a felony offense of aggravated assault. 1 6 The court
held that the student was entitled to due process prior to such removal and
reassignment." 7 The student, a 15-year-old, allegedly threw rocks at a car, injuring the
vehicle's passenger." 8 The incident was investigated and a report filed with the police,
who forwarded a copy of the report to the school district."9 The student was informed the
day after the receipt of the police report that he would be transferred to an alternative
20
program. 1
The applicable section of the Texas Education Code, Section 37.006(a),' 2 ' did "not
provide for notice to the student or a hearing prior to placement in such a[n] [alternative]
program."'12 The court held, that "Section 37.006(a) violates the Fourteenth Amendment
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and is unconstitutional insofar as it permits the removal of students accused of offcampus, felonious conduct from regular classes for placement in alternative education
23
without notice or hearing."'
[W]hen a child is removed from school for [a] violation.. . school officials who wish to
deny all educational services to [a] child have the burden of making a 'particularized
showing' that 'a procedure could not be establishedwhich would protect the safety of
staff and students while permitting the education of [the child] ....4
In addition to identifying a property interest associated with the right to an
education, the Goss Court found that school suspension involved the students' liberty
interest in maintaining a "good name, reputation, honor or integrity,"2' and where that is
at stake, "notice and [a right] to be heard are essential."' 26 It is "[o]nly when the whole
proceedings leading to the pinning of an unsavory label on a person are aired can
oppressive results be prevented.""' The Court held that a protected liberty interest is
implicated where the state unilaterally and without process determines that student
misconduct has occurred because, "[i]f sustained and recorded, those charges could
seriously damage the student's standing with [his] fellow pupils and [his] teachers as well
as interfere with later opportunities for higher education and employment.' 28 Moreover,
in McNabb v. United States, 29 Justice Frankfurter wrote, "[t]he history of liberty has
largely been the history of observance ofprocedural safeguards."' 130 Therefore, "[n]either
the property interest in educational benefits temporarily denied nor the liberty interest in
reputation, which is also implicated, is [too] insubstantial that suspensions may
constitutionally be imposed by any procedure the school chooses, no matter how
13
arbitrary."' '
The Supreme Court has established that in an administrative proceeding, due
process requires three factors be considered in determining whether a property or liberty
interest has been violated. 32 "First, the private interest that will be affected by the official
action; second, the risk of erroneous deprivation of such interest through the procedures
used... and finally, the Government's interest, including the function involved and the
fiscal and administrative burdens that the additional or substitute procedural requirement
would entail."'' 33 In addressing these same issues in Goss, the Court balanced the timing
and content of the notice and the nature of the hearing [depends] on appropriate
accommodation ofthe competing interests involved ....
The student's interest is to avoid
unfair or mistaken exclusion from the educational process, with all of its unfortunate
consequences. The Due Process Clause will not shield him from suspensions properly
imposed, but it disserves both his interest and the interest of the State if his suspension is
in fact unwarranted."3
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B. Substantive Due Process
If the state takes some action which denies or infringes upon a person's
fundamental right to an education, then strict scrutiny will apply and the state must prove
that its action is necessary to serve some compelling state interest. Furthermore, any
denial or infringement of the fundamental right to an education for a compelling state
interest must be narrowly tailored. 35
Due process is violated when a statute is so vague that it does not provide
sufficient notice to "a person of ordinary intelligence" '3 6 of the conduct that is forbidden
by its provisions.'
"[I]t [is] a violation of due process to convict and punish a man
without evidence of his guilt.' 3 8 Though that statement is applied to due process
considerations in a criminal case, the Ninth Circuit has also upheld the 'evidence of guilt'
requirement in administrative decisions.' 39
When a state extends the right to an education, it cannot withdraw that right
without adhering to procedures premised on concepts of fundamental fairness to
determine whether the violation actually transpired. 40 It is shocking that officials of state
educational institution[s], which can function properly only if our freedoms are preserved,
should not understand the elementary principles of fair play. 4 ' Thus, regardless of
whether it is to provide adequate notice to citizens or to avoid arbitrary enforcement, it
is clear that the Due Process Clause requires statutes to clearly set forth the type of
conduct that is forbidden by its provisions.' 42 Goss clearly extends this reasoning to
regulations promulgated by school boards requiring them to be specific when proscribing
43
student behavior.
The severity of the punishment that can be given to zero tolerance violators is an
important concern because violations become part of a student's record which may affect
later job or college applications. The ultimate penalty, expulsion, can force the student
to either seek education in another school or not complete his or her secondary
education.'" Consequently, when a student is expelled from school for behavior that is
a violation of a strict zero tolerance policy even when the exact behavior being penalized
was innocent of intent, it is a grave denial of fundamental fairness which has a farreaching effect.
In recognition that banishment is perhaps counterintuitive to an enlightened
educational system, some school boards have instituted policies whereby they isolate the
'disruptive' student from their peers and in some cases without any educational
materials. 45 They contend that this procedure is not a suspension under Goss.'"
However, the court in Cole v. Newton Special MunicipalSeparateSchool District47 held
"that the physical presence of a student at school is not conclusive as to whether school
officials are excused from according a hearing in connection with imposing in-school
isolation characterized by exclusion from the classroom."' 4
"Under certain
circumstances, in-school isolation could well constitute as much of a deprivation of
education as an at-home suspension, as the student is excluded from the educational
process as much by being placed in isolation as by being barred from the school
grounds."' 4 9 A thorough reading of the decision in Goss however, yields a clear
indication of the Court's inclination to protect students, except in very aggravated
situations, from administrative actions which would operate to exclude them from
receiving an education. 50
C. No Right to Remain Silent
The Fifth Amendment sets forth the explicit right against self-incrimination in a
criminal proceeding and an obvious question is whether or not students have similar rights
in school disciplinary matters. Most courts have held in zero tolerance policies, that
school officials may question a student without any Miranda or Miranda-like wamings. '
These decisions are premised on the proposition that school personnel are, by law, not
law enforcement personnel, and not held to the same standards.'52
In Boynton v. Casey, 5 3 a student brought an action against the school board based
on his expulsion for using marijuana on school premises." The student alleged that he
was subjected to questioning, and that during questioning (which lasted more than one
hour), he was not permitted to leave.'55 Furthermore, he was not informed of "his right
not to answer questions and to have his parents present at the questioning."' 56 The court
held that school authorities were not required to notify the student and his parents that he
had a right to have his parents present during questioning. 5 7 The court went on to say
that, even if the student was denied permission to leave during questioning by school
authorities concerning the possible use of marijuana on school premises, the questioning
did not amount to a 'custodial interrogation' requiring Miranda warnings, as school
officials were not acting at the request of the police, but rather were acting to determine
whether the student should be suspended or expelled. 5 With regard to the student's
complaint of a due process violation,' 59 the court held that school authorities met the
requirements of due process when the student was notified of the alleged infraction of
school rules and then met with school officials for an hour to discuss the matter."6
However, in State v. Bower 6 ' the Ninth Circuit ruled that a student's confession
was involuntary when it was obtained as a result of undue influence by a basketball
' The statement, which the student made to the coach, "was not [a] product of his
coach. 62
rational intellect and free will because [the student] feared that if he did not [make the
"a The court held that
statement], he would be suspended from the basketball team.... ,,
"[a]n involuntary confession is inherently untrustworthy because the free will of an
individual is overborne by the external influence exerted in obtaining it."' 64 Moreover,
"[t]he requirement that a confession be voluntary reflects a recognition of the importance
of free will and of reliability in determining the admissibility of a confession, and thus
' 65
demands an inquiry into the totality of circumstances surrounding the confession.
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"[C]oercive conduct of a private person may be sufficient to render a confession
inadmissible .... "66
In New York, the court found that the commissioner of education has the final
authority not to suspend or expel a student. 167 In Pollnowv. Gleenon,16' a proceeding was
brought in which the school district sought an order annulling a determination of the
commissioner of education, which, inter alia, directed the school district to reinstate a
student to regular class attendance. 69 The commissioner stated that "to preserve [the
student's] right against self-incrimination, [the] student may request an adjournment of
a disciplinary hearing pending the disposition of criminal charges against him."' 70
Students may refuse to testify on their own behalf because they are too intimidated
by the process which is initiated, prosecuted and resolved by authorities who exert
absolute control over their fate. There is authority that the courts will intervene when a
student's silence during disciplinary proceedings is used against him. "One cannot be
denied his Fifth Amendment right to remain silent merely because he is a student. '
"[S]ilence shall under no circumstances be used against [the student] as an admission of
guilt."' 72 In Gonzalez v. McEuen,'73 students refused to testify at their expulsion hearing
on the advice of their attorneys. 1'4 School authorities argued that the students' "failure to
take the stand without specific assertion of Fifth Amendment privileges constituted a
waiver of the privilege against self-incrimination.""' The court in relying on Griffin v.
California,7 6 held that a high school student's Fifth Amendment rights against selfincrimination were violated when, during expulsion proceedings, counsel for the school
district was permitted to comment on the student's refusal to testify and to argue that guilt
could be inferred from such refusal.' 77 Therefore, when a student fails to defend himself
at a hearing, thereby creating a presumption of guilt, his Fifth Amendment rights have
been violated.'78
D. No Right to Confront Witnesses
In many jurisdictions, a zero tolerance offender is not entitled to face his accusers.
This is in stark contrast to the Sixth Amendment which guarantees the right to confront
witnesses against them. In Newsome v. BataviaLocal School District,179 a student "was
summoned to the [principal's office] and accused of possessing and offering a marijuana
cigarette for sale on high school property."'' ° "[The student] denied the charges and
[requested] the source of the accusations, [whereby he was advised] that the information
had been obtained... [from] two students but [the principal] refused to identify them." 8 '
The Court utilized the balancing test from Mathews v. Eldridge"2 to determine
whether "the probable value of the additional pre-expulsion, procedural safeguards... to
protect [the plaintiff's] interest in a free education [was] outweighed by the burden placed
[on] the school by the additional safeguards."'8 3 The Court held that the student did not
have a due process right to learn other students' identities because school administrators
382
V
had the opportunity to access the credibility of the informing students.84The Court stated
that "it is critically important that we protect the anonymity of students who 'blow the
whistle' on their classmates ... ,185 "[T]he necessity of protecting student witnesses from
[the benefits] of allowing the accused student to crossostracism and reprisal outweighs
186
examine his accusers."
The Court further opined that the school administrator's disclosure to the board
during closed deliberations, of a purported confession to a drug counselor, not previously
presented at an open hearing on a student's expulsion, violated the student's due process
rights by depriving him of an opportunity to rebut the evidence. 87 "[P]rocedural due
process, at a minimum, requires notice of both the charges and the evidence against an
individual .... 188
Similarly, in Paredes v. Curtis, a student did not have the right to know the
identity of or to cross-examine an anonymous student informant relating to the student's
suspension. 189 The student was suspended for possession of a look-alike drug. 9 ' The
student relied on the decision in Newsome, 9 ' where the school administrator "during
closed school board deliberations after the hearing revealed to the board a purported
confession by [the student] to a ... counselor."'" The court held that "the written
statement of [the] student informant... is distinguishable from the confession evidence
in Newsome."' 93 Since "school officials did not rely on the [anonymous student
informant's] written statement... [any] discrepancies between the written statement..
. and the [school official's] oral allegations [to the student] ... [were] minor . . . .""
Therefore, a school official is not required to show an accused student an informant's
written statement. 95
However, in Gonzales v. McEuen,' 9 a California district court held that notice of
an expulsion hearing, "to be adequate must communicate to the recipient the nature of the
proceedings[;] ... notice given to the student must include a statement not only of the
specific charge, but also the basic rights to be afforded the student: ... [namely, the right
to] confront and cross-examine adverse witnesses."' The court further held that "failure
of [a school] [d]istrict to call essential witnesses ... [could] have a direct bearing on
98
whether it [sustained] its burden of proof based upon competent, credible evidence."'
E. Cruel and Unusual Punishment
Any intervention that treats [different] problems with [like punishment] ... is not
only unfair but destined to fail.'" Even if an application of the Fifth and Sixth
Amendments to zero tolerance problems seems improper for the time being because,
strictly speaking, these policies do not proscribe and punish activities that are criminal,
does this also contraindicate an application of the Eighth Amendment? Traditional
analysis would suggest that the Eighth Amendment's prohibition against cruel and
unusual punishment is limited to criminal cases as well and would not apply to discipline
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imposed under zero tolerance policies.2" However, it is clear that since the Supreme
Court's decision in Austin v. United States,2"' the prohibition has application outside the
criminal arena. 2 The Court found in Austin that punishment could "[cut] across the
division between the civil and criminal law."20 3 The emphasis of the court's inquiry upon
review should be whether a particular action is punitive or remedial in nature.2 "4 Clearly,
zero tolerance disciplinary actions have a punitive dimension. Ascertaining how they can
be construed as remedial is a difficult task at best.
Historically, when a particular criminal punishment is under judicial review, the
courts have used as a premise the proposition that punishment must not be grossly out of
proportion to the severity of the crime.20 5 Under Weems v. United States,2" the Court
focused on the lack of proportionality between the crime and the offense.20 7 "[I]t is a
precept ofjustice that punishment for [a] crime should be graduated and proportioned to
[the] offense."2 8 Phrased differently, in order to be effective, any proscriptive law or
policy must link the severity of the sanction to the severity of the offenses it defines.
It is fairly self- evident that expulsion from school is the most serious sanction that
a school administration can levy against a student.2' Although the Court in Goss was
primarily concerned with protecting students' due process rights, it was clearly concerned
with the issue of proportionality.2"0 Under Goss the Court found that the level of due
process afforded students accused of misconduct should be commensurate with the
punishment. t ' Further, the Court indicated that there had to be a connection between the
discipline imposed and the offense charged. "[A] school's interest in general deterrence
cannot justify any punishment in any circumstance."2 2 The Fifth Circuit court of appeals
succinctly framed the issue and its resolution: "a mandatory [disciplinary] rule [adopted
by a school board can be] unconstitutional [if] there is [no] rational relationship between
213
the punishment and the offense."
In Willis by Willis v. Anderson Community School Corporation,t 4 the Seventh
Circuit ruled that a student, initially suspended for fighting, did not have to submit to
random drug and alcohol testing to be readmitted to school."' The court held that the
"causal nexus" between the use of illegal substances and violent behavior of students at
school was not sufficient to create reasonable suspicion that a high school student
involved in a fight with another student was using an illegal substance.21 6 The court found
that the school district's policy requiring suspicionless drug and alcohol testing of all high
school students suspended for three or more days for fighting was not justified by 'special
needs' beyond normal need for law enforcement.2"7 Furthermore, the court went on to
discuss the role of teachers, and stated that to the ever-expanding diversionary duties of
school teachers, [they now have] the new function of spotting and bringing to account
drug abuse, a task for which they are ill-prepared and which is not readily compatible with
2 8
their vocation." '
384
V
The substantive limits imposed by the Eighth Amendment on what can be made
criminal and punishable were discussed in Robinson v. California. 9 The Court found
unconstitutional a state statute that made the status of being addicted to drugs a criminal
offense.22° It held, in effect, that it is "cruel and unusual" to impose any punishment at all
for the mere status of addiction. 2 ' In Robinson, the defendant was convicted of violation
of a statute making it a criminal offense for a person to be addicted to the use of drugs.222
The Court held that a state law which made a 'status' of narcotic addiction a criminal
offense for which the offender can be prosecuted before reformation and required
imprisonment, inflicted a 'cruel and unusual punishment,' in violation of the Fourteenth
Amendment.223
In Fisherv. BurkburnettIndependentSchool District,224a student sought an appeal
from a suspension, and eventual loss of trimester credits, because of a drug overdose.225
The student's claim that her substantive due process rights were violated because the
punishment was 'grossly excessive,' was held by the court to be legitimate in view of the
school's pressing interest in discouraging drug abuse at school. 26 This sort of argument
could just as easily have been framed in Eighth Amendment terms. Interestingly, the
court in Fisherrecognized the limited remedial utility of such a suspension by stating,
"[t]he loss of credit was undoubtedly a bitter pill.., to swallow; ... [it was not] a
particularly therapeutic dose of justice. Such an academic forfeiture will not
'
demonstrably make the [student] a better person." 227
The California attorney general recently considered whether a school district may
adopt a zero tolerance policy mandating expulsion for a first offense involving possession
of a controlled substance or alcohol.22 He concluded that a school district policy
mandating expulsions for those offenses may be inconsistent with state law, since the
legislature intended a case-by-case application of the relevant criteria.22 9 Furthermore, "a
rational connection must be made between the presence of the student on campus and
[the] continuing danger to the physical safety of the [student] or to others."23 The
attorney general opined, that "it would be difficult to conclude that the offending pupil
must be removed from the school in order to avert continuing danger... in all cases."23 '
A school district may not implement a zero tolerance policy that takes away the
discretionary authority granted to it under the statutory scheme.232
Clearly, schools can impose a disciplinary action for unacceptable behavior, but
the latitude granted the authorities is not without limit. "The proposition that government
officers, including school administrators, must act in accord with rules in meting out
discipline is so fundamental that its validity tends to be assumed by courts engaged in
assessing the propriety of specific regulations." 233 However, the whole issue of
proportionality, which lends itself to a constitutional analysis under the Eighth or
Fourteenth Amendments, need not be any more complicated than requiring the school
authorities to act reasonably. "Disparity between the offense and [the] punishment in an
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385
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individual case might render the punishment an unreasonable means to attain the
legitimate end...." 2 "
It is elementary to state that it is "a violation of due process to punish one for
'
In Lee v. Macon County Board of
conduct that has not been lawfully condemned."235
Education,236two sisters were sent home from school by the principal, and were not given
a date to return.2 37 Thereafter, the principal notified the school board listing "various
disciplinary contacts with each child and requesting that each be 'dismissed' from
school. 2 38 Neither the students, nor their family were sent copies of the letters or
"informed of their existence or content. 2 39 Subsequently, "the district court denied the
motion for emergency relief, holding that there [was] no deprivation of due process and
that the evidence before the Board of Education was sufficient to support the
determination that the children were guilty of the infractions charged., 240 The court
the issue, permanent
further held that in view of the principal's efforts to resolve
24 1
exclusion from school, although harsh, was not arbitrary.
The court of appeals held that "the Board employed an erroneous legal
standard. 24 2 "During the disciplinary hearing the Superintendent, who is . . .also
Secretary of the Board, was interrogated about ... a request from the principal for
expulsion of a student ....[The Superintendent said,] [o]ur policy is that the principal
exhausts every effort; and once he recommends [expulsion], we usually grant it. '243 The
court stated that "for example, a school board could not constitutionally expel forever a
pupil who had committed no offense other than being five minutes tardy one time.
The power of school boards to expel the students "is not unlimited and cannot be
arbitrarily exercised. '245 The court further held that "a sentence of banishment from the
local educational system is, insofar as the institution has the power to act, the extreme
penalty, the ultimate punishment .... Stripping a child of access to an educational
opportunity is a life sentence to second-rate citizenship .... 246
F. Tales from Outside the School
State statutes providing that a student may be suspended if the student is
insubordinate or disorderly or if his conduct endangers the safety or welfare of other
students are not meant to empower school officials to punish students for actions which
have no connection with their school. 247 In JamesP. v. PaulLemahieu,248 a student was
"suspended from school for violating Act 90 [of the Hawaii Revised Statutes], which
prohibits the possession of alcohol while attending school."2'49 However, before a student
may be suspended from school, due process requires that "the disciplinary [board]...
have evidence of a statutory violation by [the student] before it may punish that
[student]." 250 Here, there was no evidence of a student violation. The only evidence was
that the student had consumed alcohol before attending a school function.25 '
386
V
The court opined "that the Due Process Clause requires statutes to clearly set forth
' and that the doctrine's interest
the type of conduct that is forbidden by its provisions,"252
' The court held that the student was improperly
is in avoiding "arbitrary enforcement." 253
punished under the statute prohibiting possession of alcohol at school, and therefore was
entitled to a withdrawal of disciplinary sanctions, allowing the student the opportunity to
make up missed course work and to participate in athletic activities. 2" Furthermore, the
student's records were expunged; his college applications would be tarnished, because the
actions taken by the school would have been a part of his permanent record.255
G. Some States Rethink, Relent, and Retreat
The Pennsylvania legislature recognized that circumstances could arise that would
require an exception to be made to its mandatory expulsion provision.256 The Third
25 7 ruled that the school board exceeded
Circuit, in Lyons v. Penn. Hills School District,
its authority in adopting a zero tolerance policy for weapons. 25' The board's policy denied
the superintendent of schools the exercise of discretion, specifically provided by statute,
which allowed the superintendent to modify, on a case-by-case basis, expulsion for
students who possess weapons; and the policy frustrated "the clear legislative intent that
'
[the] statute not be blindly applied."259
In Lyons, a middle school student with an "A" average was seen filing his nails
with a Swiss Army knife that he found at school. 2 ' The student was expelled for one
year, after a school-board-appointed hearing officer made the recommendation to the
" ' "[T]he disciplinary determination did not involve consideration of [the]
board.26
262
student's record.
The court held "that while the District's 'zero tolerance' policy had been adopted
by vote, it had never been reduced to a writing. '263 Additionally, the court found the
District's zero tolerance policy failed to provide for any recommendation for modification
to the policy's one year expulsion provision. '"264 "[H]ad the District's policy been
properly drafted, an exercise of discretion would have been warranted in this case.,"265
The court further stated that, "[a] school board may not make rules which are outside their
26
grant of authority from the General Assembly."
It may well be that the use of zero tolerance policies has reached a high water
mark. Significantly, there are indications that a retreat from zero tolerance laws is in the
offing. In June of this year, Governor John Engler of Michigan signed into law a
provision softening that state's zero tolerance statute,267allowing school districts to
suspend students rather than expel them for various forms of assault.268 This change was
precipitated by a dramatic increase in the number of expulsions which required school
board action under the state's zero tolerance law enacted in 1999.269
In the Lansing, Michigan school district, application of the statute had caused a
four-fold increase in the number of expulsions compared to school years previous to its
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enactment. 270 Even smaller school districts saw the effects. 271 "Williamston schools, with
'
an enrollment of about 2,000, expelled ten students - seven for minor assaults."272
Williamston Superintendent Gerald Stinson was quoted as saying, "We took the most
literal approach to this ....In seven of those cases, the same situation would have been
' Likewise, in the Lansing
handled in the past with a one, two, or three-day suspension."273
district, twenty-seven students were expelled "for carrying a knife, although only seven
of the knives fit the state's definition [of] a weapon. "274
Betty Brown, the president of the Lansing Teacher's Union, agreed, in theory, with
the latest modification of the state's law.275 "We certainly don't want students punished
to the extreme .... There have to be sensible consequences. 2 76 But Brown expressed
reservations about liberalizing the law.2 77 "If we see school boards going soft on this, then
it will be an issue. 278
In Michigan and other states, it is clear that school administrators and teachers feel
that they are faced with a dilemma.279 On one hand they must strive to achieve their
mission of educating the students, while on the other, they must maintain discipline in the
school environment. The concept of zero tolerance, as originally intended for the schools,
however, was not to be applied to all offenses that a student might commit, only those
which are extreme (possession of drugs and weapons). When the policy is extended to
other types of behavior, it becomes problematic. The fact that large numbers of school
districts have allowed such extensions should be a matter of concern. Recent cases of
extreme school violence might have created an atmosphere of fear among our educators.
Their response to the possibility of school violence may be to maximize punishment in
order to maximize deterrence. There are some indications that fear of this sort may in fact
be a major factor. Some jurisdictions have begun student profiling, a new procedure
designed to head off violence before it occurs.280
Profiling is simply an extension of the school's authority to maintain discipline.28 '
In an effort to prevent school violence, authorities have turned to student profiling in an
effort to target possible "problem" children.282 Profiling focuses on triggering behavior
that a student may exhibit.283 Presently, students are selected for profiling upon the
suspicion, usually of a teacher, that the student's behavior is not "normal." 2" The student
in question is then interviewed and a questionnaire completed.2" 5 The responses are then
evaluated and compared to an existing profile.286
Similar computer profiling programs are already in existence and are widely used
by law enforcement bodies across the country. 28 7 One such program, "Mosaic-2000," is
currently being modified for use on students by Gavin de Becker, a Hollywood security
consultant.28 8
Typical questions made in an effort to evaluate potential problem students are:
"What is the student's demeanor toward authority figures? Has there recently been media
attention to school shootings or other acts of violence? What is the student's home life
388
V
situation?"2 9 "Students who exhibit certain risky behaviors - cursing, mood swings,
writing about 'the dark side of life' - can face expulsion or worse. '' 9
A student was expelled in Granite City for writing a note in which he promised to
"settle some scores."29 ' Having run the gambit of the schools' profiling program, he was
placed under arrest and suspended for ten days. 92 But this turned out to be a false
alarm.2 93 "In the meantime, teachers investigating the matter found that the note was only
the concoction, as superintendent Steve Balen puts it, 'of a goofy freshman having
fun.'"1294
Thus, if a child is acting withdrawn, she may be required to answer questions that
may or may not label her as a potential threat. If the manner in which the zero tolerance
policies have been deployed is any example, the use of profiling could well be expanded
and used in an overly inclusive manner. The potential for the abuse of this procedure is
quite apparent, and in many respects raises questions similar to those raised by zero
tolerance policies. Profiling carries with it perhaps even a greater risk of stigmatization
for the child. Will a child carry with him the fact that he was once seen to be the proper
target for profiling throughout his educational career? Will the profile, or simply the fact
that he was required to be profiled, be part of his record that is transmitted to future
schools? Hopefully, school administrators will have learned from the zero tolerance
experience and not adopt such procedures wholesale.
CONCLUSION
Educating young people is a matter of vital importance to our society. "Without
sufficient education [people] would not be able to earn an adequate livelihood, to enjoy
life to the fullest, or to fulfill as completely as possible the duties and responsibilities of
'
good citizens."295
We expect our schools to provide more than just instruction in the
various academic subjects in the curriculum. Students are imbued with societal values
throughout their educational experience. This process of enculturation is just as important
as academic learning. As the court related in Doe v. Renfrow, "Schools cannot expect
their students to learn the lessons of good citizenship when the school authorities
themselves disregard the fundamental principles underpinning our constitutional
freedoms." 29
It is, and always has been, a norm that schools have the authority to discipline
students whose behavior detracts from the educational environment. This is a matter of
common sense and is justified under the doctrine of in loco parentis,although the school
authority over the students is not identical with that of parents.2 97 When schools exercise
their authority in arbitrary and subjective ways, such as adopting a zero tolerance policy,
two negative results occur. First, respect for such a system will erode, given time.
Second, young people who are subjected to such a system of absolute right or wrong will,
understandably, expect nothing less than society in general should operate within similar
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parameters. This cannot be the outcome that well-meaning educational administrators
desire. Aside from being unconstitutional, a justice system premised upon principles of
zero tolerance would, itself, be intolerable.
The most problematic feature of zero tolerance policies seems to be the manner
in which they are applied. School administrators have extended the basic concept of zero
tolerance to include situations that are not within the purview of the original concept, i.e.,
prevention of armed violence and possession of drugs. As has been shown, this overextension results in situations that are fraught with unfairness. Rather, just as the
Michigan school authorities learned from experience, administrators must be given
latitude to use discretion when disciplining students, to distinguish between imprudent and
dangerous behavior. Communicating proportionality and fairness is an important lesson
for their young charges and can be accomplished while ensuring that our schools remain
safe places of instruction for our future citizens and leaders.
Notes
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
390
See Ira M. ShultzSchwartz, et al., School Bells, DeathKnells and Body Counts: No Apocalypse
Now, 37 Hous. L. REv. 1,'2-6 (2000) (footnotes omitted).
See Laura Beresh-Taylor, Comment, Preventing Violence in Ohio's Schools, 33 AKRON L. REv.
311, 311-12 (2000) ("Two students in combat gear, ages eleven and thirteen, initiate a massacre as
their classmates vacate the building during a false fire alarm. Four students and one teacher are
dead, and ten others are injured.").
See id. at 312 ("A fourteen-year-old student ambushes a prayer group meeting at his high school.
Three students are dead, and five others are injured.").
See ShultzSchwartz, supra note 1, at 1-2 ("[T]wo students... bearing a variety of sophisticated
armaments, opened fire, shot, and killed thirteen people at their school.").
See Rivera Live (CNBC television broadcast, Apr. 21, 2000) ("A six-year-old boy arrives at his
classroom near Flint, Michigan, with a .32 caliber semi-automatic and kills a six-year-old
classmate, Kayla Rolland.").
See Paul M. Bogos, Note, "Expelled. No Excuses. No Exceptions. "- Michigan'sZero tolerance
Policy in Response to School Violence: M.C.L.A. Section 380.1311, 74 U. DET. MERCY L. REV.
357, 363-64 (1997). See also Schultz, supra note 1 at 5.
See Barry C. Feld, Symposium on the Futureof the Juvenile Court: Abolish the Juvenile Court:
Youthfulness, CriminalResponsibility, and Sentencing Policy, 88 J. CRIM. L. & CRIMINOLOGY 68,
68(1997).
See id. at 79-81.
See generallyDale IBrie III, Comment, ParentalDelinquency: Should Parentsbe Criminally
LiableforFailureto Supervise Their Children?,74 U. DET. MERCY L. REV. 93 (1996). See also
Bogos, supra note 6 at 379.
See Bogos, supranote 6 at 373.
See id. at 374-375 (allowing "for the immediate expulsion of students found in possession of a
firearm or other dangerous weapon, on or near school grounds.").
Id. at 374.
V
13.
14.
15.
Weems v. United States, 217 U.S. 349, 367 (1910) (addressing the legality of§ 56 of the Penal
Code of the Philippine Islands, and a sentence thereunder, under the guarantees against cruel and
unusual punishments of the Bill of Rights of the Philippine Islands).
See Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S. 503, 511 (1969).
347 U.S. 483 (1954).
16.
17.
18.
Id. at 493.
Id.
See Florence Moise Stone & Kathleen B. Boundy, School Violence: The Needfor a Meaningful
Response, 28 CLEARINGHOUSE REV. 453, 459-60 (1994).
19.
Id. at 460 (emphasis in original).
20.
Id. at 464.
21.
22.
Gonzales v. McEuen, 435 F.Supp. 460,at 471 (D.C. Cal. 1977).
New Jersey v. T.L.O., 469 U.S. 325, 334 (1985).
23.
See Cara DeGette, Bustedfor Lemon Drops, First-GraderSuspended, DENVER POST, Nov. 19,
24.
Russ Skiba & Reece Peterson, The Dark Side of Zero Tolerance Can PunishmentLead to Safe
Schools?, PHI DELTA KAPPAN, Jan. 1, 1999, at 372.
Id.
Id.
Id.
Id.
1997, at A-01.
25.
26.
27.
28.
29.
30.
31.
20 U.S.C. § 8921 (2000).
Improving America's School Act of 1994, 103-761, § 1001(a)(1) (1994).
See Cathe A. v. Doddridge County Bd. of Educ., 490 S.E.2d 340, 348 n. 5 (W. Va. 1997) (A high
school student, expelled for 12 months for weapons possession, filed a writ of mandamus seeking
to compel the board of education either to readmit him to regular classes or to provide him with
other state funded educational services.).
32.
33.
Id.
See id.
34.
35.
36.
20 U.S.C. § 8921(b)(1) (2000).
See 18 U.S.C. § 921(a)(3-4) (2000). See also 20 U.S.C. § 892 1(b)(4) (2000).
20 U.S.C. § 8921(d)(2) (2000).
37.
See Beresh-Taylor, supra note 2, at 323.
38.
See 20 U.S.C. § 8921(b)(1) (2000).
39.
40.
See id.
Chris Pipho, Living with Zero Tolerance; Weapons Ban in Schools, 79 PHI DELTA KAPPAN 725,
41.
42.
43.
(1998).
See 20 U.S.C. § 8921(b)(1) (2000).
See Pipho, supra note. 40 at 725.
See John Leo, CrackingDown on Kids, U.S. NEWS & WORLD REPORT, Dec. 13, 1999, at 19.
44.
See Charles Patrick Ewing, Why Violence in Schools Cannot Be Tolerated; Zero tolerance Policies
Have Led to Absurd Situations in a Few Rare Cases, but Growing Crime in Schools Suggests That
Even Seemingly Minor Incidents must Be Dealt with Swiftly and Severely, BUFFALO NEWS, Sept.
45.
See Phyllis Schlafly, Why Are We Losing the Drug War?, CHATrANOOGA TIMES/CHATrANOOGA
FREE PRESS, June 5, 2000, at B7.
10, 2000, at IF.
Peden
46.
See Leonard Pitts, School Bent on Ignoring Common Sense, MILWAUKEE JOURNAL SENTINEL,
Dec. 29, 1999, at 10.
47. See id.
48. See id.
49. See id.
50. World News Tonight with Peter Jennings,(ABC television broadcast, Feb. 8, 2000).
51. See id.
52. Id.
53. See Cathy Cummins, 'Busted' Students Try to Cope; Infractions Upset Schoolchildren'sLives,
DENVER ROCKY MOUNTAIN NEWS, June 4, 1998, at 4A.
54. Id.
55. See Derrick DePledge, American One Year after Columbine, GANNET NEWS SERVICE, April 17,
2000, at ARC.
56. See id.
57. See id.
58. Jennifer Harper, "RobbersSuspendedfrom NJ School; Cops too, WASHINGTON TIMES, April 7,
2000, at Al.
59. CNN Today (CNN television broadcast, Sept. 29,2000).
60. Id.
61. Id.
62. See supra note 50.
63. See CNN Talkback Live (CNN television broadcast, June 17, 1999).
64. See Patricia Farrell Aiden, Suspended! Boy Disciplinedfor Reporting Drugs to Parents,DAILY
NEWS OF LOS ANGELES, May 6, 1999, at N1.
65. See id.
66. See id.
67. See id.
68. Id.
69. See C.S., on behalfof minor, K.S. v. Bd. of Educ. of the Township of Piscatawy, Middlesex
County, SB 56-97(State Board of Education Decision May 19, 1997).
70. See id.
71. See id.
72. See id.
73. See id.
74. West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624,637 (1943).
75. See Ingraham v. Wright, 430 U.S. 651, (1977).
76. See Tinker v. Des Moines, 393 U.S. 503, 506 (1969).
77. See Goss v. Lopez, 419 U.S. 565, 574 (1975).
78. See id.
79. See Plyler v. Doe, 457 U.S. 202, 217 (1982).
80. LAFAVE ET AL., CRIMINAL PROCEDURE, § 2.7(c) at 87 (3rd ed. 2000).
81. Id. at 77.
82. See Robinson v. California, 370 U.S. 660, 675 (1962)(Douglas, J., concurring) (quoting Francis v.
Resweber, 329 U.S. 459, 463 (1947)).
83. Weems v. United States, 217 U.S. 349, 367 (1910).
392
V
84.
85.
86.
87.
88.
89.
90.
91.
92.
93.
94.
95.
96.
97.
98.
99.
100.
101.
102.
103.
104.
105.
106.
107.
108.
109.
110.
111.
112.
113.
114.
115.
116.
117.
118.
119.
120.
121.
122.
123.
124.
125.
126.
Robinson v. California, 370 U.S. 660, 676 (1962) (quoting O'Neil v. Vermont, 144 U.S. 323, 331
(1892)).
511 U.S. 600 (1994).
26 U.S.C. §§ 5801-5872 (2000).
Staples, 511 U.S. at 602 (quoting 26 U.S.C. § 5845(b)).
See id. 604-05.
See id. at 606-07(defining a public welfare offense).
Id. at 610.
See id. at 612.
282 F.2d 302 (8th Cir. 1960).
See id. at 310.
See id.
See Goss, 419 U.S. at 565; and Ingraham, 430 U.S. at 651.
319 U.S. 624 (1943).
Id. at 637.
Id.
419 U.S. 565 (1975).
See id.
Id.at 574.
See id. at 572.
Id. at 585 (Powell, J., dissenting).
See id. at 576.
See id.
See id. at 584.
See Dixon v. Alabama State Bd. of Educ., 294 F.2d 150, 157 (1961).
Id. at 158.
Id. at 156.
Id. at 157.
Id.
Ingraham v. Wright, 430 U.S. at 651, 676 (1977).
Baldwin v. Hale, 68 U.S. 223, 233 (1863).
Dixon, 294 F.2d at 157.
954 F.Supp. 1162 (W.D. Tex. 1996).
See id. at 1166.
See id. at 1167.
See id.at 1163.
See id.
See id.
TEx. EDUC. CODE ANN. § 37.006(a) (West 1999).
Nevares, 954 F.Supp. 1163, 1164
Id. at 1167.
Cathe A. v. Doddridge County Bd. of Educ., 490 S.E.2d 340, 351(1997) (emphasis added)
(quoting Doe v. Superintendent of Schools of Worcester, 653 N.E.2d 1088, 1103-04) (1995)
(Liacos, J., dissenting).
Goss v. Lopez, 419 U.S. 565, 574 (1975).
Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).
Peden
127.
128.
129.
130.
131.
132.
133.
134.
135.
136.
137.
138.
139.
140.
141.
142.
143.
144.
145.
146.
147.
148.
149.
150.
151.
152.
153.
154.
155.
156.
157.
158.
159.
160.
161.
162.
163.
164.
165.
166.
167.
168.
169.
170.
394
Id.
Goss v. Lopez, 419 U.S. at 575.
323 U.S. 332 (1943).
Id. at 347.
Goss v. Lopez, 419 U.S. at 576.
323 U.S. 332 (1943).
Id. at 335.
Goss v. Lopez, 419 U.S. at 579 (quoting Cafeteria Workers v. Elroy, 367 U.S. 886, 895 (1961)).
Cathe A. v. Doddridge County Bd. of Educ., 490 S.E.2d 340, 347 (1997)(quoting Phillip Leon M.
v. Greenbrier County Bd. of Educ., 484 S.E.2d 909, 918 (1996)).
James P. v. Lemahieu, 84 F.Supp.2d 1113, 1121 (D. Haw. 2000).
See id.
Id. at 1119-20 (quoting Harris v. United States, 404 U.S. 1232, 1233 (1971).
See James P., 84 F.Supp.2d at 1119.
See Goss v. Lopez, 419 U.S. 565, 574 (1975).
See Dixon v. Alabama State Bd. of Educ., 294 F2d. 150, 157 (1961).
See James P., 84 F.Supp.2d at 1120.
See Goss v. Lopez, 419 U.S. at 575-76.
See id.
See Cole v. Newton Special Mun. Sep. Sch. Dist., 676 F.Supp. 749, 750 (S.D. Miss. 1987).
See id.
Id.
Id. at 751.
Id. at 752.
See Goss, 419 U.S. at 575.
See Betts v. Board of Educ., 466 F.2d 629, 631 n.1 (1972).
See id.
543 F.Supp. 995 (D. Me. 1982).
See id. at 996.
See id.
Id.
See id. at 998.
See id. at 997.
See id.
See id.
881 P.2d 538 (Haw. 1994).
See id. at 540.
Id.
Id. at 544.
Id. at 545 (quoting Colorado v. Connelly, 479 U.S. 157, 176 (1986))(Brennan, J., dissenting).
Id. at 547.
See Pollnow v. Gleenon, 594, F.Supp. 220, 224 (S.D.N.Y. 1984).
594 F.Supp. 220 (S.D.N.Y. 1984).
See id. at 222.
Id.
v
171. Gonzales v. McEuen, 435 F.Supp. 460,471 (C.D. Cal. 1977)(quoting Caldwell v. Canaday, 340
F.Supp. 835, 841 (N.D. Tex. 1972)).
172. Id.
173. 435 F.Supp. 460 (C.D. Cal. 1977).
174. See id. at 470.
175. Id.
176. 380 U.S. 609, 613 (1965)(Justice Douglas recited the reasons for the Fifth Amendment protection,
"[T]he act was framed with a due regard also to those who might prefer to rely upon the
presumption of innocence which the law gives to every one, and not wish to be witnesses.").
177. See Gonzales, 435 F.Supp. at 470.
178. Morale v. Grigel, 422 F.Supp. 988, 1003 (D.N.H. 1976).
179. 842 F.2d 920 (6th Cir. 1988).
180. Id. at 921.
181. Id.
182. 424 U.S. 319, 334-35 (1976).
183. Newsome, 842 F.2d at 924.
184. See id. at 925.
185. Id.
186. Id.
187. See id. at 928.
188. Id. at 928 n.7.
189. 864 F.2d 426 (6th Cir. 1988) The student was suspended from school for look-alike drugs and
claimed due process deprivations when he did not have a right to know the identity of his accuser.
190. See id. at 427.
191. Newsome, 842 F.2d at 924.
192. Paredes, 864 F.2d at 429.
193. Id.
194. Id. at 430.
195. See id.
196. 435 F.Supp. 460 (C.D. Cal. 1977).
197. Id. at 467.
198. Id. at 468.
199. Richard L. Curwin & Allen N. Mendler, Zero Tolerancefor Zero Tolerance, PHI DELTA
KAPPAN, Oct. 1, 1999, at 119.
200. See Brian Knowlton, A Backlash in the U.S., Zero ToleranceInjustices Multiplying, Critics Say,
INTERNATIONAL HERALD TRIBUNE, Feb. 14, 2000, at 13. The Supreme Court in Ingrahamv.
Wright, 430 U.S. 651 (1977) made it plain that it would not extend the protections afforded by the
Fifth and Eighth Amendments to situations involving student discipline, a position echoed by Ms.
Strossen of the American Civil Liberties Union.
201. 509 U.S. 602 (1993).
202. See id. at 610.
203. Id. at 609.
204. See id.
205. See Weems v. United States, 217 U.S. 349, 371 (1910).
206. 217 U.S. at 349, 366 (1910).
207. See id. at 366.
Peden
208.
209.
210.
211.
212.
213.
214.
215.
216.
217.
218.
219.
220.
221.
222.
223.
224.
225.
226.
227.
228.
229.
230.
231.
232.
233.
234.
235.
236.
237.
238.
239.
240.
241.
242.
243.
244.
245.
246.
247.
248.
249.
250.
396
Id. at 367.
See Gonzales, 435 F.Supp. at 471.
419 U.S. 565.
See id. at 572-76.
Fisher v. Burkburnett Independent School District, 419 F.Supp. 1200, 1205 (N.D. Tex. 1976).
Mitchell v. Board of Trustees of Oxford Mun. Separate Sch. Dist., 625 F.2d 660, 664 n.8 (5th Cir.
1980).
158 F.3d 415 (7th Cir. 1998).
See id. at 416.
Seeid. at419.
Seeid. at419-21.
Id. at 424 (quoting Vemonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 663 (1995).
370 U.S. 660 (1962).
See id. at 667.
See id.
See id. at 660-6 1.
See id. at 667.
419 F. Supp. 1200 (N.D. Tex. 1976).
See id. at 1202.
See id. at 1204-05.
Id. at 1205.
See 80 Op. Cal. Att'y Gen. 348 (1997).
See id.
Id.
Id.
See id.
Warren County Bd. of Educ. v. Wilkinson, 500 So.2d 455, 460 (Miss. 1986) (concerning an honor
student's loss of credit for a semester for taking three sips of beer with a friend, at her home on the
last day of school).
Fisher, 419 F.Supp. at 1205.
Warren, 500 So.2d at 460.
490 F.2d 458 (5th Cir. 1974).
See id. at 458-59.
Id. at 459.
Id.
Id.
Id.
Id.
Id.
Id. at 460 n.3.
Id. (citing Dixon v. Alabama State Bd. of Educ., 294 F.2d 150, 157 (1961)).
Id. at 460.
See Warren County Bd. of Educ. v. Wilkinson, 500 So. 2d 455, 460 (Miss. 1986).
84 F.Supp. 2d 1113 (D. Haw. 2000).
Id. at 1115.
Id. at 1120.
V
251.
252.
253.
254.
255.
256.
257.
258.
259.
260.
261.
262.
263.
264.
265.
266.
267.
268.
269.
270.
271.
272.
273.
274.
275.
276.
277.
278.
279.
280.
281.
282.
283.
284.
285.
286.
See id.
Id.at 1121.
See id.
See id.at 1121-22.
See id.
See Lyon v. Penn Hills Sch. Dist., 723 A.2d 1073, 1076 (Pa. 1999).
Id.
See id.at 1076.
Id.
See id.at 1074.
See id.
Id.
Id.
See id.at 1075.
Id.at 1075 n4.
Id.at 1076.
Mark Mayes,School Districts Welcome Relaxed Expulsion Law, LANSING STATE JOURNAL, July
9, 2000, at Al.
See id.
See id.
See id.
"The 18,000 pupil district expelled a record 105 students in 1999-2000, compared to 23 in
1998-1999 and 25 in 1997-1998."
See id.
Id.
Id.
Id.at 10A
See id.
Id.
See id.
Id.
Michigan is not the only state to sound a retreat from the rigid application of these policies.
Tennessee has modified its statute; "A zero tolerance violation shall not necessarily result in a
presumptive one(l) calendar year expulsion except for those types of student misconduct set forth
in Section 49-6-3401(g)." TENN. CODE ANN. § 49-6-4216(b)(1). Also, Arizona has modified its
statute; "A school district or charter school shall expel from school for a period of not less than
one year a pupil who is determined to have brought a firearm to a school within the jurisdiction of
the school district or charter school, except that the school district or charter school may modify
this expulsion requirement for a pupil on a cas-by-case basis." A.R.S. § 15-841G.
See Kenneth J. Cooper, School's Lessonfrom Law Enforcement; ProfilingHelps ID Students Who
May Be Dangerous,WASHINGTON POST, April 16, 2000, at A27.
See id.
See id.
See id.
See id.
See id.
See id.
V
397
Peden
287. See id.
288. See Cooper, supra n287. See also Jodie Morse, One Year Later: Can We PreventAnother
Columbine?, TIME, April 24, 2000 at 50.
289. See Morse, supra note 294.
290. Id.
291. Id.
292. See id.
293. See id.
294. Id.
295. Dixon v. Alabama Sch. Bd. of Educ., 294 F.2d 150, 157 (1961).
296. 451 U.S. 1022, 1027-28 (1982) (Brennan, J., dissenting).
297. See Marlar v. Bill, 178 S.W.2d 634,635 (Tenn. 1944).
398
V

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