Zero tolerance policies: criminalizing childhood and disenfranchising the next generation of citizens.

• Author: Mitchell, S. David
• Position: I. Introduction into II. Zero Tolerance Policies C. Legal Challenges, p. 271-297

TABLE OF CONTENTS I. INTRODUCTION II. ZERO TOLERANCE POLICIES A. The Origin and Evolution of Zero Tolerance Policies B. The Impact of Zero Tolerance Policies 1. In General 2. The Disproportionate Impact C. Legal Challenges 1. Free Speech 2. Right to Privacy 3. Due Process III. THE NEXT GENERATION OF DISENFRANCHISED CITIZENS A. The Making of a Disenfranchised Citizen B. The Adult Disenfranchised Citizen 1. The Disenfranchised Citizen Loses the Right to Vote 2. The Disenfranchised Citizen Denied Employment C. The Next Generation of Disenfranchised Citizens 1. Juveniles Convicted in Adult Criminal Court 2. Juveniles Adjudicated Delinquent 3. Juveniles in the Pipeline--Suspended or Expelled IV. Prescription for Re-Enfranchising a Generation A. Remove Zero Tolerance Policies B. Limit the Scope of Zero Policies C. Restorative Justice D. Expungement V. Conclusion. A juvenile adjudication of guilt has far more drastic consequences than existed just ten years ago ... Some of these consequences may not be apparent for a number of years, but their possibility should be anticipated, fully considered, and planned for, wherever possible. (1)

1. INTRODUCTION

   Columbine High School, Littleton, Colorado. (2) Heath High School, West Paducah, Kentucky. (3) Westside Middle School, Jonesboro, Arkansas. (4) Zero tolerance policies (5) were adopted in these schools and around the country in response to tragic school shooting events. (6) Under zero tolerance, students are suspended, expelled, or referred to juvenile authorities or some combination thereof for specified offenses. Zero tolerance policies punish students harshly regardless of the severity of the infraction, the existence of mitigating circumstances, or the context in which the conduct occurred. School shootings have garnered an extraordinary amount of attention not only because of the violence but also because they happened in schools, places that are supposed to be safe. While tragic, school shootings are unique events considering the number of schools that operate daily without incident. Yet, the policies that have developed in the wake of these acts have been misguided, especially as applied to childhood conduct. Kiera Wilmot is a prime example of this misguided application of these policies and the potential for irrevocable harm.

   Kiera, a sixteen-year-old African-American high school honor student in Florida, decided to conduct a science experiment that her teacher had not approved. (7) Mixing household cleaner and aluminum foil in an eight-ounce water bottle, Kiera's experiment caused a popping sound no louder than a firecracker and some smoke. (8) No one was harmed, and no property was damaged. (9) Yet, she was expelled under the school's zero tolerance policy. She was charged with possession of or discharging of a firearm and possession of a destructive device, charges that would have required her to be tried as an adult and not a juvenile. (10) This inquisitive, bright student was in jeopardy of being convicted of a felony and subsequently disenfranchised for the childhood crime of curiosity. Kiera would have been denied the right to vote before she reached the age of majority and become a fully enfranchised citizen.

   Zero tolerance policies construe all conduct the same regardless of the context. The inquisitive sixteen-year-old who endeavors to conduct a science experiment (11) or the eleven-year-old child who is arrested for drawing a violent stick figure (12) are both treated the same. Each of these students faced a harsh school-related disciplinary sanction under zero tolerance--suspension or expulsion--and was referred to the criminal justice system. Not only do the policies fail to distinguish between the severity of offenses, but they have also had a disproportionate impact on students of color and students with disabilities, like the seven-year-old special needs child who was arrested for throwing a tantrum while decorating an Easter egg. (13) In the short-term, students that are punished under zero tolerance policies are being denied an education, (14) because being suspended or expelled requires that students be removed from the school setting thereby causing them to miss out on classroom instruction. (15) But that is not all. Students that are suspended or expelled are also at a "greater risk" of dropping out of school altogether. (16) Moreover, these students have an increased risk for "future incarceration." (17) In the long term, because "future incarceration" or contact with the juvenile justice system is an increased risk, zero tolerance policies are a contributing factor to the disenfranchisement of these students, and a denial of their full citizenship.

   In schools that employ zero tolerance policies, school administrators and teachers are required to refer students to law enforcement. In many instances, law enforcement personnel are present on school grounds so referrals occur immediately. (18) The policies have conflated serious and non-serious behavior resulting in the criminalization of some conduct that can be characterized as "childhood behavior." (19) Because teachers and administrators have little to no discretion in creating individualized sanctions, the punishments they impose are met with frustration--students view their punishments as irrational, impersonal, and unjustified. As a result, nondiscretionary zero tolerance policies breed contempt for the rule of law, irreparably harm students' notions of fairness and justice, and contribute to the creation of the same divisions between students and teachers that exist between adult citizens and law enforcement. While zero tolerance policies penalize students too harshly for insignificant or nonviolent conduct, the policies have had a disproportionate impact on students of color, particularly African-American students, as well as students with disabilities. As a result, these students are at greater risk of being disenfranchised than their white counterparts and students without disabilities.

   Social scientists examining discipline in educational settings have found that African-American males were disproportionately sanctioned regardless of whether they were in the numerical minority; (20) the type of infraction (e.g. defiance, fighting, truancy, tardiness, or dress code);21 or the type of discipline being applied (e.g. suspension or expulsion). (22) The existing empirical research also indicates that African-Americans are unduly targeted for a range of behaviors and suffer various education-interrupting consequences. Zero tolerance policies are thus one reason (23) for the disparity in discipline between African-American students and their white counterparts, also known as the "discipline gap." (24) Moreover, zero tolerance policies not only contribute to the disparity of school-related discipline for African-American and Latino students but these students are also more likely than their white peers to be referred to the juvenile justice system, regardless of the demographics of the school's enrollment. (25) Furthermore, the socioeconomic status of the students does not account for the existence of these disparities. (26) Zero tolerance policies may not be racialized in theory, but the application of the policies has had a profoundly racialized effect. With their removal of students from the educational setting, especially students of color and students with disabilities, zero tolerance policies are depriving students of what has long been viewed as a means of upward mobility, thus contributing to the next generation of...