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In Texas recently, a high school student was sent to juvenile jail for five days without a hearing after writing a Halloween horror story in which a teacher and some classmates were shot.
Constitutional scholar Jamin Raskin cites the “unbelievable and shocking” case as an example of due process being denied to a student because of a zero-tolerance policy.
In the 1970s and '80s, the war on drugs accustomed American students to such anti-drug tactics as warrantless drug testing, locker searches and drug-sniffing dogs nosing around their cars and bookbags.
But student rights eroded even faster in the '90s as schools embraced zero-tolerance discipline policies to address school violence, say legal scholars like Raskin, a professor at American University. Following a recent spate of mass murders at schools, lawmakers and school officials adopted zero tolerance for behavior that even implies violence. Now, students are being suspended for writing about death, suicide or murder or for drawing pictures of guns.
“Discipline codes should discourage some of the negative writing that goes on,” says John Mitchell, deputy director of education issues for the American Federation of Teachers. “Schools shouldn't be compelled to display work that isn't uplifting.”
Students have always had fewer First Amendment rights than other citizens, says Eugene Volokh, a law professor at the University of California at Los Angeles. “When you're talking about K-12 education, the government has much more authority than it does over private citizens,” he says. But in the 1960s, the Supreme Court expanded those rights, a trend that some say has been dramatically reversed in the past two decades.
“From the Warren Court era to the Rehnquist Court era, there has been a progressive decline in constitutional protection for students' rights,” says Raskin, author of We the Students, a new textbook on students' rights.
Others disagree. “I don't think students' rights have declined,” says Edwin Darden, senior staff attorney for the National School Boards Association (NSBA). “There's been an evolution to try to balance the needs of school districts and the needs and rights of the students.”
The courts have been “very thoughtful” about how to achieve that balance, Darden says. But constitutional rights don't exist in a vacuum, he says, and the courts have had to weigh schools' need to ensure the safety of all students against the rights of the individual. “The courts have often ruled in favor of the schools.”
Raskin says the Supreme Court “aggressively defended” students' First Amendment rights its 1969 Tinker v. Des Moines Independent Community School District ruling. The court said students should not be prevented from wearing black armbands to protest the Vietnam War unless it would cause “material and substantial disruption of school activities or invasion of the rights of other students.”
As Justice Abe Fortas wrote in the case: “Neither students nor teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
But by the late 1980s, Raskin says, the reconstituted court's Hazelwood School District v. Kuhlmeier ruling upheld the authority of schools to censor student publications “for almost any reasonable purpose.”
Raskin says another constitutional right being “violated all over the country by zero-tolerance policies” is the right to due process. In the years before zero tolerance, students had a right to hear and respond to the charges against them before being expelled or suspended. But now, Raskin says, “Students are automatically suspended without a hearing.”
The tough, new policies reflect longstanding complaints by politicians that liberal court rulings allowed chaos to reign in classrooms because educators had to jump through procedural hoops to expel disruptive students. Many observers say the current crackdown is a backlash to those procedural excesses.
“The only due process right that the Supreme Court has given students is that they must be given some notice of the charge against them and some opportunity to respond,” says Nadine Strossen, president of the American Civil Liberties Union (ACLU). “It can be completely informal, it can be verbal and it can be after the punishment has been meted out, and students have no right to a lawyer. To even call it 'due process' is an exaggeration.
“It's nothing compared with what you would get if you were accused of even a misdemeanor outside of the school,” she says. “Yet the life-destroying consequences can be at least as great if you're talking about someone being thrown out of school.”
However, students' rights have expanded in two areas, Raskin says. High school students may now sue their school for student-on-student sexual harassment if the school knew about it and did nothing to stop it. And many state courts have ruled in recent years that corporal punishment is unlawful, he points out.
Legal experts predict that the next two frontiers for students'-rights litigation will involve what Raskin calls school “cyber-censors,” and efforts by schools to extend their disciplinary authority to off-campus student behavior.
In the aftermath of the shootings at Columbine High School in Littleton, Colo., some schools are cracking down on students who put material on their home Web pages that criticizes or threatens school personnel.
Except for those posting bomb threats, students have generally won their court challenges to such policies, especially if it merely involved the right to criticize the school administration and caused no disruption in classes, Raskin says.
Darden says the courts will also be seeing more challenges of schools trying to discipline students for what they do during non-school hours. “It's the next big wave of school litigation over the next two years.”
For instance the Texas legislature recently passed a law requiring the expulsion of any student who commits a felony or an assault, or distributes drugs or alcohol near school property. Many states are requiring that schools be notified when a student runs afoul of the law, even though it was not on school property or during school hours. Some of those students are summarily expelled or suspended.
Darden says these new laws are efforts by the school districts to tell students, “We care about the whole person. When you do things that are dangerous to yourself, like using drugs or alcohol, the school district cares about that and will not look the other way.”
But others find them a disturbing trend. “It would be ridiculous for the school to get involved, unless perhaps the student was arrested for rape,” says Kent Scheidegger, legal director of the conservative Criminal Justice Legal Foundation in Sacramento, Calif. “You wouldn't want a suspected rapist in the school. But arrested for marijuana possession? That doesn't make any sense. That should be a matter for parents and the juvenile courts. That's what they're there for.”
Darden says it is often the parents who are “asking, begging and cajoling” the school districts to impose tough behavior standards off-campus. If the school is randomly testing kids for drugs, it's easier for a student to resist peer pressure, parents argue.
“Except for the most extreme circumstances, schools really have no rightful authority to discipline students for activity off-campus,” says Peter Blauvelt, president of the National Alliance for Safe Schools (NASS). “I think you have to make a case that the child's presence in school causes an undue risk of violence to others at school if a student got caught smoking marijuana or drinking on Saturday night and the school wants to expel him, I think that's ridiculous,” Blauvelt says.
“It's much easier for politicians to demand a crackdown on the most silly and imagined transgressions,” Raskin says. “So we have some kid spending five days in juvenile detention for writing a ghost story.”
John Whitehead, president of the Charlottesville, Va.-based Rutherford Institute, a conservative group dedicated to protecting civil liberties, worries about the long-term impact of zero-tolerance tactics. “You're teaching kids that they live in a totalitarian society,” he says. “This generation has been raised being searched without a warrant, being strip-searched and having their urine tested without probable cause. You'll have a whole set of people who will be conditioned to promote order over rights.
“You also have a whole segment of society that is being repressed,” Whitehead says. “They operate on a subterranean level, because they really don't have free speech. They have secret signals, eye movements and code words.”
Further, he says, “Many kids are smoking as a way to rebel. And younger and younger kids are drinking. I think it's a way of shoving it into the faces of the adults.”
He says much of the violence erupting among kids already is the result of repressed anger. “Sooner or later they will blow,” he predicts.
Whitehead says adults are sending kids the wrong message with zero-tolerance policies. “The message kids are getting is that some crazy adult game is being played here, and that the rules are really stupid,” he says. “The adults say they're teaching kids about 'justice' when they say they must treat every infraction the same. But how is it justice to treat someone with a pair of nail clippers the same as you treat someone with an Uzi?”
Bibliography
Books
Catherine Coles , Fixing Broken Windows: Restoring Order and Reducing Crime in Our Communities, Martin Kessler Books, 1996. The Rutgers University professor and his co-author argue that ignoring minor problems in cities, like broken windows or graffiti, eventually leads to an increase in serious crime. Kelling first outlined the approach in a 1982 Atlantic magazine article.
Raskin, Jamin B. , We the Students: The High School in the High Court, Congressional Quarterly , 2000. An American University constitutional law professor outlines precedent-setting Supreme Court cases involving drug testing, locker searches, school newspaper censorship, sexual harassment and free speech.
Articles
“Zero tolerance on drugs urged,” Houston Chronicle, May 21, 1986. Education Secretary William Bennett becomes the first official to ask Congress to withhold federal education funds unless schools adopt “zero-tolerance” expulsion policies for drug dealing on school grounds.
Baxter, Bethany , “The Intolerance of Zero Tolerance,” Intellectual Capital.com, Aug. 19, 1999. A consultant to colleges argues that school officials do not model good judgment by setting up zero-tolerance policies that treat all offenses equally harshly.
Cloud, John , “The Columbine Effect,” Time, Dec. 6, 1999. Zero tolerance sounds like a good way to treat violence in schools, but experts say it may have gone too far.
Gail Russell Chaddock , “Schools get tough as threats continue,” The Christian Science Monitor, Nov. 5, 1999. Educators are struggling with how to implement get-tough safety rules meant to stop student shootings.
Johnson, Dirk , “Schools' New Watchword: Zero Tolerance,” The New York Times, Dec. 1, 1999. This overview looks at how zero-tolerance school discipline has replaced more traditional punishment.
Reece Peterson , “The Dark Side of Zero Tolerance: Can Punishment Lead to Safe Schools?” The Kappan, January 1999. The authors argue that increasingly broad interpretations of zero tolerance have resulted in a near epidemic of suspensions for seemingly trivial events, increasing the likelihood that excluded students will get involved in drugs and gangs.
Terry Keleher , “Zero Tolerance: An Interview with Jesse Jackson on Race and School Discipline,” Colorlines, spring 2000. Jackson contends that zero-tolerance polices disproportionately target minority students.
Reports and Studies
Keleher, Terry , Applied Research Center, March 1999. In a survey of 12 large school districts across the country, the public-policy institute found that black students are three to five times more likely to be expelled than white students in some districts.
Kingery, Paul , “Suspension and Expulsion: New Directions,” Hamilton Fish Institute, ,unpublished 1999 study. Kingery found that expulsions and suspensions are rising nationwide and that longer and permanent expulsions are at an all-time high.
“National Survey of Teens, Teachers and Principals,” 1998. The Columbia University research center found that 85 percent of principals believe zero-tolerance policies keep drugs out of schools.
“Violence and Discipline Problems in U.S. Public Schools: 1996-1997”, 1998. This survey of more than 1,000 school principals found mixed and minor improvements in school discipline and drug problems.
“Education Denied: The Negative Impact of Zero Tolerance Policies,” February 2000. A briefing paper prepared for the U.S. Civil Rights Commission argues that zero-tolerance policies are having a disproportionate impact on African-American and Latino children.
“Report on State Implementation of the Gun-Free Schools Act,” August 1999. This annual report shows that in the 1997-98 school year, 3,930 students were expelled for bringing a firearm to school, a 31 percent drop from the previous year.
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