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

Author:Mitchell, S. David
Position:Continuation of II. Zero Tolerance Policies C. Legal Challenges through V. Conclusion, with footnotes, p. 297-323

1. Free Speech

Zero tolerance policies were designed to be proactive, even if that proactivity results in infringing upon a student's free speech rights. (130) The reasoning is that when a student brings a weapon to campus it may be too late at that point to prevent the harm that may occur. Thus, rather than risk the harms, administrators assess childhood behavior differently. For example, in the past, a student who submitted a piece of creative writing or an art project that depicted an act of violence would have been counseled or the teacher would have discussed what the student intended with the work. (131) Under the current system, however, the student is referred to school administrators for violating the zero tolerance policy. With this proactive approach, student speech is viewed with suspicion. Naturally, students and their advocates have challenged the application of zero tolerance policies as an infringement on the students' First Amendment rights to free speech. (132) An illustrative case of this was a 17-year-old high school student who wrote a poem following the tragic school shooting at Sandy Hook Elementary School. (133) In her personal notebook, the student wrote a poem reflecting upon the shooter. (134) A teacher found the poem and gave it to the principal. (135) The poem was not viewed as "self-expression about the scarier aspects of life." (136) It was viewed as a safety threat earning the student a suspension and the possibility of expulsion. (137) The poem which was meant to serve as a cathartic piece of writing for the student was viewed as an indicator of potential danger. (138)

While some have expressed a concern for the free speech rights of students, proponents of zero tolerance policies note that students do not possess limitless free speech protection and thus infringing upon that right is not relevant. (139) In fact, the Court has on several occasions curtailed student speech when it has been determined to be disruptive to the learning environment. (140) For example, in S.G. ex rel. A.G. v. Sayreville Board of Education, (141) a five-year-old kindergarten student and his classmates made statements that referred to the use of weapons and "shooting each other at recess." (142) The student stated that he and his friends were playing a game of "cops and robbers" when he uttered the phrase "I'm going to shoot you." (143) The kindergartener was subsequently suspended for three days. (144) The Superintendent of Schools told the kindergarten student's parents that "policy was policy" and that he had to stand behind the principal's decision. (145) In the context of a schoolyard game that children have played in a variety of forms over the years, the District Court granted the school's motion for summary judgment, deferring to the judgment of the school administrators. (146) And so, while the student raised a First Amendment argument, the appellate court upheld the lower court's decision relying upon the reasoning that a student's right to free speech was not absolute. (147) In these and other cases, the Court has deferred to the schools in determining the best way to create a safe and effective learning environment. (148)

In defending zero tolerance policies and the infringement on the free speech rights of students, proponents of the policies emphasize the numerous instances in which the perpetrators of school violence had demonstrated their intent and capacity for violence in their writings and elsewhere, but these warnings had largely gone unnoticed. For proponents, the telltale signs were present long before any violent act was ever committed and the failure was that school personnel failed to take these warning signs seriously. Zero tolerance policies thus require that administrators are proactive and not reactive, waiting for something to happen. (149) The reason that schools take a pre-emptive stance is to prevent being held liable for failing to identify students (150) and possible warning signs, and for failing to intervene to prevent a tragedy or an act of violence from occurring. With mandatory referrals, school personnel no longer have the discretion to not refer a student when they lack certainty about a student's intentions. Therefore, rather than err on the side of caution, zero tolerance policies now err on the side of acting too quickly. They remove school personnel indecision and discretion. (151) In the absence of such discretion, however, all behavior that fits the prohibited criteria is subject to punishment regardless of the actual conduct or the underying intent. The rationale is clear that while the policies may interfere with students' free speech rights, some infringement is preferable to the possible alternative--an act of violence. In short, it is better to infringe upon a student's constitutional right rather than permit a tragedy from occurring.

2. Right to Privacy

Another legal challenge to zero tolerance policies is that they infringe upon the students' right to privacy. Exceeding the original scope of the Act, zero tolerance policies were expanded to include a range of behaviors, (152) most notably the possession of drugs. (153) Students who are found to be in possession of drugs will be punished swiftly and harshly. Hence, the policies are clear and unequivocal. The problem with the policies, however, is that they fail to make a distinction between harmless over-the-counter items, such as cough drops (154) or ibuprofen, (155) and illicit drugs.

With zero tolerance policies, the infringement on the right to privacy has been implicated most notably with respect to legally permissible and proscribed medications, such as birth control pills. (156) For instance, a teenage girl was suspended for two weeks and faced the possibility of expulsion for taking her birth control pill, (157) highlighting the failure of such policies to distinguish between legal and illegal drugs. (158) The creators of the policies did not contemplate the range of drugs or medications that were sold over-the-counter and that students could legally possess, thus creating a blanket prohibition on all substances. (159) A parental exception to the policies does exist, if a student received parental consent to possess certain medications and provided notification and documentation to the school. (160) On its face, this solution appears to resolve the potential for invading a student's right to privacy. But it does not. By requiring a parental exception, zero tolerance policies run afoul of a student's right to privacy. For example, the parental consent exception therefore denies female students the right to possess contraceptives, such as birth control pills, and control their own reproductive autonomy absent parental knowledge. (161) Proponents argue that to prevent illicit drug possession, all drugs should be barred or parents should provide consent. The underlying notion is that safety in general should be allowed to trump the individual privacy rights of students.

3. Due Process

Another ground upon which zero tolerance policies have been challenged is due process. (162) Students have attacked the constitutionality of such policies, claiming that school administrators often fail to adhere to an established process. (163) For example, students have asserted that schools have often failed to provide notice of the charges. (164) Considering juveniles have secured a host of due process rights in the formal juvenile justice system, (165) it would seem readily apparent that due process would be adhered to in the school setting, especially given the severity of the consequences that may follow.

In some jurisdictions, zero tolerance policies are viewed as being "vague and overbroad," (166) thus not providing students with a clear understanding of the substance or procedure associated with the violation to the policies. The Court has not looked favorably upon such challenges, finding them to be constitutionally void. (167) In support of its position, the Court has deferred to the schools' decisonmakers, thereby thwarting the attempts to challenge the constitutionally of zero tolerance policies on either due process (168) or equal protection grounds. (169) The "substantial deference" that the Court has afforded to school administrators (170) is in many ways similar to the deference accorded to correctional institutions in the adult context with a similar outcome. (171) Juveniles who face discipline under a zero tolerance framework are punished harshly for infractions ranging from the severe to the trivial. Punishments are handed out for conduct that is dangerous and conduct that is creative. In an effort to increase school safety, zero tolerance policies have forced school personnel to punish students for engaging in what was once simply childhood behavior.

Opponents to zero tolerance policies have raised substantive due process challenges as well, which the Court has similarly denied. The Court has long held that education is not a fundamental right, thus making substantive due process challenges difficult. Since education is not a fundamental right, laws that impact a student's education are evaluated under a rational basis test. (172) To succeed under this test, a school simply has to show that its zero tolerance policies are "rationally related to a legitimate state interest." (173) For school discipline cases, a substantive due process claim will succeed only in the "rare case" when there is "no 'rational relationship between the punishment and the offense.'" (174) Schools can easily demonstrate that zero tolerance policies are rationally related to keeping schools safe. By removing students who exhibit threatening behavior in any form, schools are proactively engaged in keeping the environment safe for students and personnel alike.

To date, the legal challenges to zero tolerance policies on a variety of different grounds have proven to be unsuccessfult. (175) And yet, while...

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