The Legal Infrastructure of Zero Tolerance Policies

Chuk Moran
Mar 5, 2018 · 7 min read
This is not right.

Dear school board, if the valedictorian had a knife planted in his backpack by her rival, would you expel her under your zero tolerance policy?

Yes.

Dear court system, would you uphold that?

Yes.

Whoa.

Derek Black has a solid case against a totally fucked system. This book is solid, clear, elegant, and full of fantastical subtle compounds. It’s a fun blend of law, education, policy, and history. Let’s do it.


The School Discipline problem:

The issue isn’t just that zero tolerance policies are silly. The issue is that American public schools have discipline policies and practices that are very harmful to their students.

Some schools suspend one out of every 2 students each year. African American students are suspended at 4x the rate of white students. Students who are suspended or expelled once are 3x more likely to be suspended or expelled again. These students are more likely to end up prison and, in many respects, live as second class citizens. Link. (I love how the bourgie lawyers make this sound shocking, surprising, and avoidable.)

Expelling and suspending students is strongly correlated with decreased academic achievement, even when you control for everything else. Very simply, it hurts the individual student’s ability to get something out of school, when he or she is less able to put time into it. Such students are also likely to disengage and see the school as an enemy. But expulsions and suspensions also hurt achievement of other students, and is correlated with increased marijuana use, and more adversarial relations with teachers. The Department of Justice and Department of Education have seen this happen and advise against using these policies.

The Zero Tolerance Approach & Legal Context

Zero Tolerance policies became widespread for a few reasons. First, desegregation created a new wave of “discipline problems.” Yeah, desegregation. Teachers didn’t really know how to work with new students and would often send them off for punishment. The school systems were just trying to survive the change and were, in most cases, white controlled institutions with white staff serving a white community and its white agenda. (Black presents this as a fact, which I accept.) In the 1975, the Supreme Court heard Goss v. Lopez. The court was faced with the question of how much to protect schools (and their employees) from lawsuits over bad discipline decisions. If you’ve ever taught, you can imagine how fucking scary it would be that, after a student has been a little shit, you punish the kid relatively mildly and nevertheless wake up the next morning to litigation. A nightmare. The schools felt it would not work well for education if any instance of punishing a student could be legally challenged. Schools do a lot of punishing, from tiny demerits or revocation of privileges all the way up to expulsion. It’s part of raising young people and it has to happen, in some form.

Schools had traditionally been protected completely from litigation, under the logic of “in loco parentis” (since 1769 in the U.S.). The idea is that you can’t sue a parent for sending their kid to bed early or sending them to summer camp; schools do similar things when acting in place of a parent.

The two new decisions tried to strike a balance between legitimate “in loco parentis” parenting and illegitimate “enclaves of authoritarianism” tyranny. The compromise was that schools had to have a procedure for discipline and follow it consistently. That made it valid. What the court meant to do was to say “we trust you, schools!” and give them lots of latitude. But schools got the opposite message and thought “we can get sued if we don’t have an airtight reason in every case.”

The stupid outcome is a legal arrangement that allows bad policies, as long as they are consistent. For example, corporal punishment is still practiced across the South, despite universal agreement in the research community that it’s a bad idea.

To make matters worse, the Supreme Court’s 1985 decision in New Jersey vs T.L.O. established an extra-low standard for schools search and seizure practices, allowing teachers and staff to search students’ lockers etc if they have “reasonable suspicion.” This means students have very weak rights in the discovery phase of a disciplinary action.

In the 1990s, Americans got very afraid of young people, with DiIulio’s “super predator” theory, the “broken windows” theory informing the policing of New York, and then the Columbine shooting all contributing. (Note: I was a teen during this time and may have felt more anti-establishment as a result of this trend. There are a lot of guesses why things got bad, the most fantastic is lead poisoning.)

During this time, many states made it legal to try juveniles as adults. By 1999, 79% of schools had Zero Tolerance for tobacco and 90% for drugs and alcohol. (Can you imagine a parent with zero tolerance for any specific behavior? “One strike — you’re out on the street!”)

So that’s the background: white teachers flustered by black students trying to avoid litigation montaged against fear of the youth yield Zero Tolerance.

Does Zero Tolerance Work?

Not very well. Students who are suspended or expelled become disengaged, more likley to misbehave again, and are basically much more likely to get to prison than they were before. Schools that suspend and expel many students become worse environments for everyone else, leading to more misbehavior.

Charter schools, the fastest growing type of school (3x from 2007–2017), are particularly likely to use zero tolerance policies, and almost all of their expulsions are for non-drug, non-violent infractions. Charter schools generally have to take students based on a lottery (they are “public” schools, right?), but can effectively later veto a students by expelling them for chewing gum or not smiling on cue etc. Thus they can pass the harder students back to the other, struggling public schools and keep things simpler for themselves how cozy.

Overall, Black could be more stronger on the question of whether Zero Tolerance “works” and he spends just a single paragraph on school shootings, arguing that students are more likely to die at the cross walk outside the school than in a shooting. While the numbers probably do still support this, it’s not a very charming answer.

I didn’t feel that the book provides much ammunition if you’re going to debate the topic with a Law ‘n Order conservative.


Legal Solutions: Due Process & Right to Education

But I didn’t read this book so I could win an argument with an ingrate. When possible, I read for majesty. Black calls for new litigation efforts to establish better precedents and force schools to renounce their Zero Tolerance policies. He has two specific legal strategies: “substantive due process” and “right to education.”

The first strategy is to push for substantive due process, clarifying existing Supreme Court decisions. Black phrases this as a requirement that school discipline be “rational.” That sounds like a high bar, but it’s really not. Due process is basically about two things: making sure the accused can participate meaningfully in decision-making about their fate and putting some external limits on how severe a punishment can be. Zero Tolerance conflicts with these principles by treating different cases as if they were the same, ignoring culpability, intent, and actual harm. Zero Tolerance policies are entirely formalistic, asking simply “did this behavior occur?” Black’s point is that this is, de facto, illegal. He has a number of specific tests and examples, but it’s a pretty reasonable legal strategy. A highlight in this section is his claim that “[a]dolescents as a class are impulsive, lack self-control, need attention, do not always engage in conscious decision-making processes, and do not fully appreciate the consequences of their actions” (p. 155). If the school doesn’t take this into consideration in punishment, they are not providing due process. There is also a nice sub-argument about maximum acceptable punishment that was quite interesting, but just comes back to the same: school discipline policies and practices should be rational.

The second strategy is to find a right to education in the state constitution, then show that a Zero Tolerance policy impairs someone’s access to education, and argue that the barrier to education should be removed. Black points out that rights to education exist in most state constitutions and, while they take various forms, always say that students should be able to receive an education at a public school. I had never taken this “right” very seriously, but Black is strong on the case that education is rightly respected by the court system as a precondition of good citizenship, proper function of government, success in the professional world, and a healthy life. Bourgie af, but reasonable.

Black wants to see activitst groups start litigation using these strategies as soon as possible.

A good book!

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