Public school districts across America are evaluating the effectiveness of zero tolerance school discipline policies. (1) Initially developed in the 1980s to combat the war on drugs, zero tolerance policies spread to school districts in the wake of congressional legislation addressing concerns for school safety. (2) In addition to expulsions mandated by the Gun-Free Schools Act of 1994, (3) many states required expulsion for other offenses on school property including drug possession, violence, disruptions, and other anti-social behavior. (4)
Although federal and state drug enforcement agencies eventually abandoned zero tolerance because of its rigidity, (5) zero tolerance attitudes remain ingrained in school districts nationwide. (6) Such policies eliminate consideration of student-specific factors. Thus, violations of these policies are effectively strict liability offenses for which a student is disciplined regardless of the circumstances or the student's intent. Arguably, this approach results in administrators treating all students the same, thereby eliminating potential liability for discrimination or for allowing dangerous students to remain in school. (7) Proponents maintain that zero tolerance policies deter bad behavior because punishment is "harsh and certain." (8)
In practice, however, failure to consider a student's intent, past disciplinary record, or other mitigating circumstances can lead to expulsions or suspensions for minor and unintentional infractions. (9) Zero tolerance policies prevent administrators from fully considering the circumstances of each student, which can produce overly harsh results. (10) Furthermore, there is no proof that these exclusionary zero tolerance policies actually make schools safer or significantly deter misbehavior. (11) In fact, one study links the consequences of zero tolerance policies--increased numbers of suspensions and expulsions--to a variety of negative consequences: low academic performance and engagement, higher drop out rates, and higher likelihood of additional suspensions or expulsions. (12)
This Note surveys the harm of zero tolerance policies raised by numerous scholars over the past fifteen years and focuses on recent legislative efforts to discourage and eliminate these policies. Specifically, it will explore two anti-zero tolerance approaches: (1) Texas's mandatory requirement that decision makers consider a student's intent, self-defense, disability, and disciplinary history, and (2) North Carolina, Colorado, and Massachusetts's permissive approaches, which allow but do not mandate consideration of similar factors. This Note analyzes the proven and prospective effectiveness of these two approaches and presents consequences interested lawmakers should consider. It argues that fusing different parts of the two approaches might lead to more thorough anti-zero tolerance laws. Specifically, it concludes that legislation combining mandatory consideration of intent and contextual circumstances with language explicitly acknowledging the harms of zero tolerance school discipline may be the most effective way to eradicate zero tolerance attitudes.
BACKGROUND ON ANTI-ZERO TOLERANCE LEGISLATION
Just as zero tolerance education laws were initially passed in response to concerns about increased violence in schools and school safety, (13) scholarly debate and media attention on the harsh results of zero tolerance policies are now swinging the legislative pendulum in the other direction. Over the past fifteen years, scholars have written extensively about the harms of zero tolerance. (14) The primary concerns raised are the prevalence of absurd results (15) (often latched onto by the media) (16) and the danger that a student's exclusion from school can lead to a higher likelihood of exclusion in the future, poor grades, and greater probability of interaction with the juvenile justice system. (17) The discourse over the harms of zero tolerance exploded in the 1990s and 2000s, catching the attention of scholars, legislatures and even the American Bar Association. (18)
Criticism of zero tolerance has not come only from scholars and the media. Teachers participating in a 2007 empirical study also found zero tolerance policies stifling. (19) Despite the fact that zero tolerance was intended to improve disciplinary fairness and uniformity by treating students equally, (20) teachers have voiced concerns about the resulting elimination of discretion in disciplinary decisions and the reality of subjective enforcement of such policies. (21)
Attention to drawbacks of zero tolerance policies resulted in the introduction of anti-zero tolerance bills in several states, including Mississippi, Pennsylvania, and Indiana, focused on discouraging zero tolerance and studying the effects of such policies. (22) Additionally, in 2001 the ABA's policy-making House of Delegates officially opposed zero tolerance policies by encouraging school administrators to exercise discretion when making disciplinary decisions and to develop alternatives to expulsion. (23) In response to rigorous debate about the effectiveness and harms of zero tolerance, many states, including Texas, North Carolina, Colorado, and Massachusetts, (24) adopted legislation mandating or encouraging administrators to look at student intent and mitigating circumstances before suspending or expelling a student. (25)
RECENT STATE CHANGES
The laws in Texas, North Carolina, Colorado, and Massachusetts exemplify two general approaches: the mandatory approach, which requires consideration of a student's intent and other mitigating factors, and the permissive approach, which encourages but does not require administrators to consider similar factors before excluding students.
The Mandatory Approach
The current section of the Texas Education Code addressing mitigating factors in disciplinary decisions was created in a 2003 statutory amendment. (26) Three changes to Section 37.001(a)(4) of the Texas Education Code between 2003 and 2009 illustrate a shift away from, and ultimately a statutory rejection of, zero tolerance. Through these three changes, Section 37.001(a)(4) evolved from allowing consideration of mitigating circumstances to requiring such consideration before disciplinary action. Now, Texas law requires school districts to consider a student's self-defense, intent, disciplinary history, and disability prior to exclusion from school. (27) Despite the mandatory language of the statute, however, it is doubtful that such statutory amendments have effectively eliminated zero tolerance attitudes. (28)
The first change in 2003 permitted school districts to consider whether a student acted in self-defense before exercising exclusionary punishment. The amended Section 37.001(a)(4) read: "the student code of conduct must ... specify whether consideration is given to self-defense as a factor in a decision to order suspension, removal to a disciplinary alternative education program, or expulsion." (29) The district had to specify whether or not to put such consideration into their code of conduct, but there was no requirement to include consideration of intent.
Two years later, the legislature amended the section a second time, expanding Section 37.001(a)(4) to include more factors. Whether to consider these additional mitigating circumstances in school exclusions remained optional. (30) The 2005 amendment read:
the student code of conduct must ... specify whether consideration is given, as a factor in a decision to order suspension, removal to a disciplinary alternative education program, or expulsion, to: (A) self-defense; (B) intent or lack of intent at the time the student engaged in the conduct; (C) a student's disciplinary history; or (D) a disability that substantially impairs the student's capacity to appreciate the wrongfulness of the student's conduct. (31) The third and most recent amendment in 2009 alters the language from permissive consideration of intent, where a school district chooses whether to weigh mitigating circumstances, to mandatory consideration, where a district must consider such factors. (32)
Two key changes are especially significant. First, the amendment shifts from requiring districts to "specify whether" schools will consider mitigating circumstances to requiring all districts to "specify that" consideration be given to such factors. (33) Rather than simply encouraging school districts to consider incident-specific circumstances, this amendment seems to require it. Second, the requirement that consideration of mitigating circumstances be given in "each decision" ensures examination of misbehavior within each case's individual context. Together, these two requirements mandate that administrators exercise judgment given the unique circumstances of each case. (34)
Additionally, in interpreting Texas's school discipline laws, Texas courts have affirmed the proposition that zero tolerance policies may violate substantive due process rights. (35) The most recent case interpreting the constitutionality of an exclusion under a Texas school's zero tolerance policy is Hinterlong v. Arlington Independent School District in 2010. (36) In its opinion, the Texas Court of Appeals acknowledges that consideration of intent by school administrators is necessary to avoid substantive due process violations. (37)
As discussed in Part III, however, despite the mandatory language of the Texas statute and judicial affirmation that examination of intent in school disciplinary decisions is necessary to satisfy due process, the effectiveness of Texas's mandatory legislative language in eliminating zero tolerance is questionable at best. (38) Texas continues to be cited for high rates of school exclusion which casts doubt on the efficacy of mandatory language absent an explicit statutory disavowal of zero tolerance. (39)
The Permissive Approach
In June 2011...