Academic journal article Faulkner Law Review

The Zero-Tolerance Discipline Plan and Due Process: Elements of a Model Resolving Conflicts between Discipline and Fairness

Academic journal article Faulkner Law Review

The Zero-Tolerance Discipline Plan and Due Process: Elements of a Model Resolving Conflicts between Discipline and Fairness

Article excerpt

The last two decades have seen public schools increasingly seeking effective means to manage both trivial and serious breaches of student behavior. (1) The means chosen from among the possibilities has typically been the zero-tolerance discipline concept. (2) The concept has become very attractive to overstressed and overworked school administrators because it attempts to take subjective decision-making out of the discipline equation. (3) Therein, however, lies the civil liberties question inherent in the application of the zero-tolerance concept: Can such a plan purporting to remove subjectivity from the attaching of guilt to punishment really be consistent with the constitutional guarantee of due process?

The headlines are typical. A student innocently brings something to school that a school administrator sees as fitting a particular definition in a rule, and the child is suspended for a prescribed period of time. (4) The average person hearing about this as a horror story on television typically thinks that the school official is either unreasonable or foolish. For example, Twin Peaks Charter School in Colorado expelled Shannon Coslet, a ten year-old student, from school because her mother put a small knife in Shannon's lunchbox so that she could slice an apple. (5) Shannon, cognizant about the school's policy against weapons, turned the knife over to her teacher. Her reward for unusual thoughtfulness for a child her age was the mandatory expulsion required by the school's zero-tolerance discipline policy. (6)

Edward Kelly, superintendent of the 51,000-student Prince William County School District in Virginia, says that zero-tolerance is primarily a response to the increasing litigiousness of American society, where parents are quick to defend their children and quick to sue the children's antagonists in the form of school officials representing the establishment. (7) His district's code of behavior, some twenty pages long, lists forty-seven types of misbehavior and twenty-six possible punishments. (8) The offenses range from bringing drugs to Sony Walkmans to school. (9) Other school administrators say that parents are very sensitive to differences in penalties, and that when parents take legal action, inconsistencies in punishment invariably become major issues. (10) This phenomenon is the genesis of the zero-tolerance movement: the fear of seeming to treat students differently. But doesn't this go to the essence of due process? Events are not always exactly alike, and an experienced school administrator is required to sort out the differences in a due process hearing. (11) In the desire to equalize results, officials ignore differing facts out of fear that they will have to defend their judgments against parental assault. However, as the Supreme Court stated in Epperson v. Arkansas, (12) "the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." School administrators are thus bound to comply.

The American Bar Association has responded to the criticisms of zero-tolerance, and to its legal history, by promulgating a resolution approved by the ABA House of Delegates:

"RESOLVED, that the American Bar Association supports the following principles concerning school discipline:

1) Schools should have strong policies against gun possession and be safe places for students to learn and develop;

2) in cases involving alleged student behavior, school officials should exercise sound discretion that is consistent with principles of due process and considers the individual student and the particular circumstances of misconduct; and

3) alternatives to expulsion or referral for prosecution should be developed that will improve student behavior and school climate without making schools dangerous;

FURTHER RESOLVED, that the ABA opposes, in principle, "zero-tolerance" policies that have a discriminatory effect, or mandate either expulsion or referral of students to juvenile or criminal court, without regard to the circumstances or nature of the offense or the student's history. …

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