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." (13)
Parents have always been wary that school officials administer school discipline policies unfairly. To a great extent, the zero-tolerance concept is an adaptation to parental and media criticisms, but the reverse side of the question can also be seen in parental and media attitudes. In reality, are mandatory "one size fits all" policies as fair as they may seem at first glance?
While a school district certainly has the authority to create and enforce a zero-tolerance policy if it is appropriately written and administered, several issues should be reviewed before that policy mandates predetermined punishments: 1) Will a written zero-tolerance policy work if it allows no exceptions? 2) Will the policy require a meaningful determination of guilt that avoids hearsay information if possible? 3) Will it take into account scienter? 4) Will the policy carefully define offenses so that real differentiation may be made among incidents? 5) Will the relationship between the punishment and the age of the student or nature of the offense be reasonable? 6) Will the policy allow flexibility? (14)
ALABAMA'S ZERO-TOLERANCE POLICY
There has been relatively little case law in Alabama courts adjudicating conflicts between students' rights to due process and zero-tolerance punishment schemes. However, there has been considerable activity in other state and federal courts, which can give guidance to local school systems in Alabama wishing to respect the rights of students accused of breaking school rules, while at the same time creating and implementing effective, workable discipline policies that serve to create good, safe schools. These dual goals may be achieved by school systems that understand the source and scope of their power to prescribe rules and regulations lying in the following: state statutes, the implications of the Due Process Clause of the United States Constitution, the Due Process Clause of the Alabama Constitution of 1901, pertinent case law revealing due process problems common in zero-tolerance discipline plans, and the realities of discipline in public schools. A model zero-tolerance plan may be written and implemented which balances the constitutional rights of the public school student and also satisfies the needs of the local school system desiring to foster a safe and effective learning environment.
Alabama Code [section] 16-1-14 requires local school boards throughout the state of Alabama to adhere to certain rules and regulations.
Any city, county, or other local public school board shall ... prescribe rules and regulations with respect to behavior and discipline of pupils enrolled in the schools ... and, in order to enforce such rules and regulations, may remove, isolate, or separate pupils who create disciplinary problems in any classroom or any other school activity [sic] and whose presence in the class may be detrimental to the best interest and welfare of the pupils of such class as a whole. Any rules and regulations adopted pursuant to this section shall be approved by the State Board of Education. Any such removal, isolation, or separation may not deprive such pupils of their full right to an equal and adequate education. (15) The Legislature thus delegates to local school boards, limited by the approval of the State Board of Education, the authority to create and apply discipline plans in the schools. However, the statute also contains a second limitation, the implications of which are broad and important: "such removal, isolation, or separation may not deprive such pupils of their full right to an equal and adequate education." (16) Although the Alabama State Constitution of 1901 does not include a right to a public education, the language of Alabama Code [section] 16-1-14 creates a statutory provision. The statute limits the extent to which local school boards may remove students from educational opportunities, thus establishing a property interest in that educational opportunity. (17) While this limitation on the power of local school boards to remove students from schools is not a due process right in itself, it does create a property interest that local school boards must not take away without due process. Curiously, the following statutes are inconsistent with this statute and appear to limit [section] 16-1-14.
Alabama Code [section] 16-1-24.1 specifically enhances the power of the Alabama State Board of Education to require that local school boards adhere to policies promulgated by the State Board of Education that relate to illegal drugs, alcohol, or weapons:
Discipline plan; safe, drug-free schools.
(a) The Legislature finds a compelling public interest in ensuring that schools are made safe and drugfree for all students and school employees. The Legislature finds the need for a comprehensive safe school and drug-free school policy to be adopted by the State Board of Education. This policy should establish minimum standards for classes of offenses and prescribe uniform minimum procedures and penalties for those who violate the policies. It is the intent of the Legislature that our schools remain safe and drug-free for all students and school employees. The State Board of Education shall adopt and all local boards of education shall uniformly enforce policies that protect all students and school employees. The State Board of Education shall require local school systems to modify their policies, practices or procedures so as to ensure a safe school environment free of illegal drugs, alcohol, or weapons. Any rules and regulations adopted by the State Board of Education pursuant to this section shall be exempt from Section 41-22-3(3). [The Alabama Administrative Procedure Act, which provides "a minimal procedural code for the operation of all state agencies when they take action affecting the rights and duties of the public."] These modifications...