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§ Zero-Tolerance Policies §
a legal reference for school leaders

Zero-Tolerance Policies
Statement of Julie Underwood, General Counsel,
Julie Lewis, Staff Attorney
National School Boards Association
U.S. Commission on Civil Rights
February 18, 2000

  • What is a zero-tolerance policy?
  • A zero-tolerance policy is generally defined as a school or district policy that mandates pre-determined consequences or punishment for specific offenses, regardless of the circumstances or disciplinary history of the student involved.

  • Why adopt a zero-tolerance policy?
  • Schools generally consider zero-tolerance policies for students who make threats of violence or bring weapons to school. Such a policy might include expulsion or suspension of students who threaten to kill or who seriously assault others and, when appropriate, would quickly provide for psychological evaluation or intervention for these students. A clear and consistent message that threats of violence will not be tolerated may help to reduce the actual occurrence of violence.

  • History/Background
  • Although the term "zero-tolerance" is relatively recent in use, the concept is not. We have seen similar policies mandated by federal and state authorities throughout the 1990s.

    1. Congressional mandate
    2. In 1990, Congress enacted the Gun-Free School Zones Act (18 U.S.C. ? 922(q)(1)(A)). This act prohibited the possession or discharge of a firearm in a school zone, with a few exceptions.

    3. U.S. v. Lopez
    4. A student, who was charged with carrying a concealed handgun into his high school, challenged the constitutionality of the Act. In U.S. v. Lopez, 115 S.Ct. 1624 (1995), the Supreme Court held that the Gun-Free School Zones Act of 1990, which made firearm possession in a school zone a federal crime, exceeded Congressâ power under the Commerce Clause of the U.S. Constitution. The Court determined that possession of a firearm in a school zone did not involve an economic activity that substantially affected interstate commerce.

    5. State legislation: gun & drug-free schools
    6. Once the Supreme Court ruled that the congressional act was unconstitutional, many states began enacting their own legislation to require schools to expel students for serious offenses. For example, in Texas the "Safe Schools Chapter" (TX Educ Code Sec. 37.007) was enacted. That statute requires the expulsion of a student for possession of a weapon (as defined in Texas code) on school property or while attending a school-sponsored or school-related activity on or off of school property. The statute also requires the expulsion of a student if he or she engages in conduct that contains the elements of the offense of aggravated assault, sexual assault, arson, murder, capital murder, and/or criminal attempt to commit murder or capital murder, indecency with a child, or aggravated kidnapping. Finally, students who sell, give, deliver, possess, use or are under the influence of drugs, alcoholic beverages or abusable chemicals must be expelled.

    7. 1994 Gun-Free Schools Act
    8. In 1994, Congress enacted the Gun-Free Schools Act. This was the congressional response to Lopez. This time, Congress tied the act to their spending power. The Gun-Free Schools Act, 20 U.S.C. ? 8921, requires that schools, as a condition to the receipt of Elementary and Secondary Education Act ("ESEA") funds, have a policy mandating a one-year expulsion for students who bring firearms to school.

  • Who has zero-tolerance policies?
  • As reported in NCEAS Indicators of School Crime and Safety (1999):

    Most public schools reported having zero-tolerance policies that apply to serious student offenses. Nine out of 10 schools reported zero-tolerance policies for firearms (94%) and weapons other than firearms (91%). Eighty-seven percent of schools had zero-tolerance policies for alcohol and 88% had zero-tolerance policies for drugs. Most schools also had zero-tolerance policies for violence (79%) and tobacco possession violations (79%).

  • Legal pitfalls
    1. Procedural Due Process
      1. Any zero-tolerance policy must provide for adequate procedural due process commensurate with the severity of the designated consequence.
      2. James v. Unified Sch. Dist. No. 512, 899 F.Supp. 530 (D. Kan. 1995)

        Student who was expelled for possession of firearm on school property. He sought temporary restraining order requiring school to permit him to take his final exams, or in the alternative, to be awarded grades earned through date of expulsion and to be allowed to attend school during the next school year. The court held that school's expulsion process comported with requirements of procedural due process.

      3. The process, obviously, must also comply with state statutory requirements on student discipline.
      4. D.B. v. Clarke County Bd. of Educ., 469 S.E.2d 438 (Ga. Ct. App. 1996)

        Student appealed school board's decision to permanently expel her from school, which the Board of Education affirmed. The Court of Appeals held that: (1) permanent expulsion of student for disciplinary reasons did not conflict with or violate student's constitutional right to free public education or a compulsory school attendance statute, and (2) student's permanent expulsion for stabbing another student with knife did not violate local board policy or student's due process rights.

        Fuller v. Decatur Public Sch. Bd. of Educ., 78 F.Supp.2d 812 (C.D.Ill. 2000)

        High school students expelled for fighting in stands during football game joined their adult representatives in suing school board and members, seeking order reinstating students. The court held that: (1) student who voluntarily withdrew from school lacked standing to sue; (2) expulsion satisfied procedural due process requirements; (3) equal protection rights of students were not violated; (4) board had not relied upon zero-tolerance to violence position in reaching expulsion decision; and (5) students' memberships in recognized gangs precluded challenge to disciplinary rule prohibiting gang activity on grounds that definition of "gangs" was unconstitutionally vague.

      5. Further, the process must comply with federal and state authority regarding procedures required to discipline children with disabilities.
      6. Miller v. Board of Educ., 690 A.2d 557 (Md. Ct. App. 1997)

        Parents sought review of state board of education decision affirming student's expulsion for possession and use of controlled, dangerous substance on school grounds. The Court of Appeals held that: (1) student was not entitled to special statutory procedures for students with disabilities absent previous finding that student was disabled; (2) statute prohibiting use of statements made by student seeking drug counseling was inapplicable; (3) expulsion was supported by substantial evidence; and (4) student's due process rights were not violated.

    2. Substantive Constitutional Issues
      1. No Infringement of Constitutional Rights -- Especially where the misconduct involves some form of speech, the policy should define the offense to exclude expression protected by the First Amendment. Vague and overly broad policies are more vulnerable to court challenge. In addition, schools must ensure that the punishment is not "shocking to the conscience."
      2. London v. Dewitt Public Schools, 194 F.3d 873 (8th Cir. 1999)

        Middle school student and his mother sued school superintendent, teacher, and other school officials, alleging substantive and procedural due process violations in connection with student's suspension and expulsion following altercation with teacher. The Court of Appeals held that: (1) there was no substantive due process violation in connection with student's altercation with teacher; (2) student failed to establish procedural due process violations in connection with his suspension and expulsion; and (3) plaintiffs failed to support claim that school district discriminated with respect to staffing in its schools.

      3. Loss of Discretion -- Schools should ensure that the designated
      4. consequences are consistent with substantive due process considerations. Basically the rule and punishment must be reasonable. School districts should be certain that their policies are drafted well enough so that petty offenses are not subject to punishment. Zero-tolerance policies relinquish the boardsâ power to exercise discretion. As such districts are completely reliant on the reasonable and sound drafting of the policy.

        Kolesnick v. Omaha Pub. Sch. Dist., 558 N.W.2d 807 (Neb. 1997)

        Student sought judicial review of his expulsion. The trial court reduced student's expulsion from two semesters to one semester. School district appealed. The Nebraska Supreme Court held that: (1) expulsion of student for knowing possession of knife on school property was rationally related to school district's interest in protecting other students and staff from violence; (3) no shocking disparity existed between student's sentence and his offense; (5) district's adoption of code of student conduct was neither arbitrary nor capricious; (6) district's expulsion of student from school for two semesters was neither arbitrary nor capricious.

      5. Clear Definitions--Because punishments are "automatic" under zero-tolerance policies, it is imperative that clear definitions be included to ensure notice of prohibited conduct and that policies do not unintentionally sweep in behavior that the school board does not wish cover.
      6. Giles v. Brookville Area Sch. Dist., 669 A.2d 1079 (Pa. Commw. Ct. 1995)

        Student appealed school board's expulsion of student for violating school district's drug policy. The court held that: (1) school board's determination that its policy prohibiting sale of drugs on school property also proscribed agreement on school property for sale of marijuana, with actual exchange of money for drugs off school property, was not abuse of discretion, and (2) one year expulsion of student was proper sanction for selling marijuana.

    3. Fair and Consistent Enforcement
      1. As with any disciplinary policy, fair and consistent enforcement of zero-tolerance policies is essential if they are to be respected by students and the community at large. The purpose of zero-tolerance policies is to provide identical discipline for circumscribed offenses; thus there is no room for inconsistent administration of punishments. However, the possibility of inconsistent enforcement still exists in the area of charging students disciplinary violations.
      2. If discrepancies in enforcement become apparent, the "get tough" message is nullified, and the district is open to charges of discriminatory application.
      3. Dornes v. Lindsey, 18 F.Supp.2d 1086 (C.D.Cal. 1998)

        Middle school student sued school principal, alleging civil rights, due process and equal protection violations under federal and state law arising out of procedures followed in connection with her expulsion from school. On principal's motion for summary judgment, the court held that: (1) unsupported statement that student was only African-American student in her school was insufficient to support claim of equal protection violation; (2) student received all process she was due in disciplinary proceedings; (3) principal acted within scope of her statutory authority in investigating charges and recommending student's expulsion.

      4. Smith v. Severn, 129 F.3d 419 (7th Cir. 1997)
      5. Parent brought state court action on behalf of high school student against school district and principal, alleging that student's three-day suspension from school violated student's rights to due process and equal protection. The student was suspended for violating rules regarding the Homecoming lip sync contest, disorderly conduct, bringing a chainsaw to school, insubordination, and gang activity. The Court of Appeals held that: (1) suspension did not violate due process, and (2) suspension did not violate equal protection.

  • Are Zero Tolerance Policies Effective?
  • In Baltimore, Maryland, an aggressive zero-tolerance law adopted last spring by the school board is credited with producing a 67% decline in arrests and a 31% decline in school crime in September and October 1999, compared with the same time a year earlier (See "Decatur Furor Sparks Wider Policy Debate," Education Week, November 24, 1999, by Robert C. Johnson).

    In Texas, a survey found that from 1993 to 1998, the percentage of teachers who viewed assaults on students as a "significant problem" dropped from 53 to 31 (See "The Fightâs Not Over," The New Republic, December 6, 1999). It is during this time that Texas mandated expulsion of students for drugs and weapons on school grounds and at school events.

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