"decision Rules" and Kids: Clarifying the Vagueness Problems With Status Offense Statutes and School Disciplinary Rules

• Publication year: 2021

89 Nebraska L. Rev.1. "Decision Rules" and Kids: Clarifying the Vagueness Problems with Status Offense Statutes and School Disciplinary Rules

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Martin R. Gardner(fn*)

"Decision Rules" and Kids: Clarifying the Vagueness Problems with Status Offense Statutes and School Disciplinary Rules

TABLE OF CONTENTS

I. Introduction..........................................................................................................................................2

II. Conduct Rules, Decision Rules, and the Doctrine of Vagueness............................................4
A.Explaining the Distinction..................................................................................................................................4
B.The Void for Vagueness Doctrine....................................................................................................................7
C.The Virtue of Vague Decision Rules: State Efforts in Promoting the Welfare of Young People............14
D.Summary.................................................................................................................................................................16

III.Vagueness and Decision Rules in Juvenile Justice ..................................................................... 17
A.The Juvenile Court Movement and Supreme Court Oversight ..................................................................... 17
B.Punishment v. Rehabilitation............................................................................................................................... 19
C.Status Condition Rules and Vagueness .......................................................................................................... 22
1.Misguided Searches for Conduct Rules ..............................................................................................................24
2.Status Condition Statutes and Punishment..........................................................................................................30
D.Summary.....................................................................................................................................................................32

IV.School Disciplinary Rules and Vagueness .........................................................................................33
A.The Supreme Court Case Law ............................................................................................................................. 34
B.Conduct Rules/Decision Rules and Lower Court Case Law .......................................................................... 39
1. Mistaken Vagueness ................................................................................................................................................39
2. Decision Rules and Punishment ...........................................................................................................................42
C.Summary .....................................................................................................................................................................44

V.Conclusion......................................................................................................................................................45

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I. INTRODUCTION

Because they are dependent and vulnerable, young people(fn1) have long been the recipients of governmental policies and legal measures aimed at promoting their welfare and protecting them in circumstances of perceived need.(fn2) Through its parens patriae power, the state routinely maintains a paternalistic posture in its interactions with minors in hopes of assisting their development into mature and responsible adulthood.(fn3) In similar fashion, governmentally employed

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educators are often loosely deemed to act in loco parentis and thus are sometimes thought to assume a quasi-parental relationship with their students.(fn4) Juveniles are thus the recipients of unique legal attention in a variety of ways. Such attention has, of course, generated a host of judicial controversies.(fn5)

A particularly troublesome issue concerns the extent to which enacted rules thought to be addressed specifically to young people are unconstitutionally vague. Such rules appear in two separate and distinct contexts: (1) enactments defining status offense jurisdiction of juvenile courts, and (2) measures intended to maintain discipline in schools.(fn6)

In this Article, I clarify the vagueness problems in the contexts of status offense jurisdiction and school discipline by appealing to the distinction between "conduct rules," which are addressed to the general public, and "decision rules," which are addressed to official decisionmakers. This distinction, as others have argued recently in other contexts,(fn7) illuminates these particular vagueness problems in the law.

Much of the controversy and confusion in the case law results from courts assuming that status offense statutes and school disciplinary rules operate as conduct rules aimed at notifying young people-potential status offenders and students, respectively-of conduct to be

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avoided, when, in fact, the rules constitute decision rules aimed at guiding the exercise of discretion of juvenile court functionaries and educational officials. Appreciation of the conduct rule/decision rule distinction will provide the courts with a vital analytical tool in deciding future vagueness claims, as well as afford policymakers guidance in fashioning status offense legislation and school discipline rules.

Part II of the Article discusses the conduct rule/decision rule distinction and its relevance to vagueness problems. Part III discusses relevant status offense cases raising the vagueness issue, rethinks them in terms of the distinction, and offers an assessment of when decision rules alone are constitutionally permissible. Part Iv offers a similar case analysis relating the conduct rule/decision rule distinction to the context of vagueness attacks on student disciplinary rules.

II. CONDUCT RULES, DECISION RULES, AND THE DOCTRINE OF VAGUENESS

Professor Meir Dan-Cohen observed that it "is an old but neglected idea" that a distinction can be drawn in the law between rules addressed to the general public, "conduct rules," and rules addressed to officials, "decision rules."(fn8) The distinction was recognized in Talmudic law(fn9) and reintroduced in modern times by Bentham.(fn10) While Ben-tham, Dan-Cohen, and others(fn11) have employed the distinction to illuminate problems in the criminal law, it is also useful in clarifying a variety of problems elsewhere,(fn12) particularly claims of vagueness regarding status offense statutes and school disciplinary rules. As I will show, decision rules are often by their nature purposely and permissibly vague. Conduct rules, by contrast, constitutionally require, at least in the criminal context, greater clarity and certainty.

A. Explaining the Distinction

Scholarly discussion of the conduct rule/decision rule distinction often focuses on the relationship between rules defining criminal offenses and those prescribing punishment for those offenses.(fn13) The former

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operate to communicate to the public what they can, must, and must not do under threat of criminal sanction. Indeed, conduct rules are constitutionally necessary preconditions for the imposition of punishment.(fn14) On the other hand, decision rules function as the means for adjudicating whether offenses have occurred and, if so, administering legal consequences.(fn15) The two kinds of rules have different doctrinal foundations. Conduct rules provide notice to the public of activity subject to sanction; decision rules guide decisionmakers such as police, prosecutors, juries, and judges in assessing the blameworthiness of, and imposing sanctions against, conduct rule violators.(fn16)

By their nature, conduct rules, whether in the criminal context or elsewhere, should be understandable to the general community and provide sufficient clarity to provide notice of the scope of the law so

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that members of the public can avoid committing criminal offenses.(fn17) Thus it is essential that conduct rules be simple, brief, and grounded in objective criteria in order to avoid unpredictability, vagueness, and ambiguity.(fn18) The primary rationale of conduct rules is notice.(fn19)

Decision rules, on the other hand, are addressed to officials empowered and often trained in making judgments. They are routinely broad and open-ended, allowing the decisionmaker to take into account the complex and varied situational factors of a particular case. Such rules embrace subjective criteria inviting individualized discretion and normative assessments.(fn20) Because decision rules are routinely applied only after thoughtful consideration, there is less need for clarity than with conduct rules.(fn21) Indeed, given the multiplicity of factors relevant to making wise decisions in any given case, relative vagueness in decision rules is a virtue, in order to properly permit evaluations without the constraints imposed by conduct rules.(fn22) Instead of providing notice-the primary rationale of conduct rules-decision rules are aimed primarily at defining areas where the exercise of official discretion and protecting against its abuse is appropriate in deciding legal cases.(fn23)

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As illustrated above, conduct rules and...