Books

Here's Why a Zero-Tolerance Policy in Our Schools Is a Terrible Idea

Report after report demonstrates that high suspension rates and harsh discipline do not deter misbehavior, keep the environment orderly, or make schools safer.

Photo Credit: DGLimages / Shutterstock.com

The following is an excerpt from the new book Ending Zero Tolerance by Derek W. Black (NYU Press, 2016): 

Over the past two decades, school discipline has grown increasingly harsh and impersonal. Many schools and states are willing to exclude— temporarily and permanently—students for almost any type of behavior. Even when students’ behavior poses no real danger to school and involves the type of immature mischief parents expect of normally developing kids, schools dig in their heels and insist that they must banish students. Local communities and policy advocates have pushed back and managed some important successes in recent years, but the seriousness and scope of the problem demands a systematic long-term check. Relying on basic constitutional rights and fairness concepts, courts must reengage on issues of discipline and enforce students’ rights. Courts cannot simply abandon students to school boards and the political process. Too often, both schools and politicians have shown themselves to be irrational and willing to sacrifice students in the expedient pursuit of other goals.

This irrationality and the need for change are best captured through the lives of students who experience discipline. On a Monday morning in October 1999 in the outer suburbs of our nation’s capital, an average thirteen-year-old boy named Benjamin Ratner received a note from one of his friends. In the note, Benjamin’s friend told him that she had felt suicidal over the weekend and had contemplated slitting her wrists with a knife. Apparently, the feelings persisted. She told Benjamin she brought a knife to school that morning in her bookbinder.

Benjamin took the note seriously. He knew his friend had previously attempted suicide and had even been hospitalized to deal with ongoing issues. Benjamin was worried she would use the knife to hurt herself that morning. Benjamin was smart enough to know that a real solution for her long-term well-being was beyond him. He planned to tell both her family and his own about the incident at the end of the school day and let them determine what to do in the coming days and hours. But in the short term, he was not going to leave her safety—and in his mind possibly her life—to chance. So Benjamin asked his friend if he could take the bookbinder from her locker and put it in his own for safekeeping. She agreed.

Within a few hours, Roberta Griffith, the assistant principal, heard rumors that Benjamin’s friend “had brought a knife to school and . . . may have given it to [Benjamin].” Griffith alerted the dean of the school, Fanny Kellogg, who called Benjamin to the office to question him. Benjamin told her that he had the binder in his locker, although it is unclear that he had actually seen or touched the knife inside the binder. What was clear, however, was that Kellogg knew that Benjamin did not pose any real threat to himself or others. Kellogg sent Benjamin by himself to get the binder and bring it back to the office. When Benjamin returned, Kellogg acknowledged that Benjamin “acted in what he saw as the girl’s best interest and that at no time did Ratner pose a threat to harm anyone with the knife.” But from then on, the school system’s thoughtfulness ended, and its disciplinary process took over.

The school’s policy approach to weapons was zero tolerance. Regardless of the danger Benjamin’s friend faced, his desire to protect her, or any other circumstances, his possession of a knife was deemed a violation of school policy. The assistant principal responded to his admittedly good deed by suspending him for ten days. The principal of the school then escalated the situation and referred Benjamin to the superintendent for potential further punishment. Both the superintendent and two different school district hearing panels decided to increase his punishment. No one questioned Benjamin’s story, but they all insisted they must suspend him for the remainder of the semester—approximately three months. Benjamin later asked the court system to reverse his punishment as irrational, but no court ever took his case seriously. The courts all claimed their hands were tied.

The irrationality of Benjamin’s punishment is not unique. Not only have states taken a zero-tolerance approach to real weapons or drugs, but they have extended the approach to everyday items that a student might have, like a cough drop or fingernail clippers. In some instances, their rationale has appeared to be that everyday items could be used as weapons or for illegitimate purposes. In other instances, the rationale is simply that students must do what they are told or suffer the consequences. A Pennsylvania statute, for instance, directs schools to expel and refer to law enforcement any student who brings a weapon to school. According to the statute, a weapon includes, “but [is] not . . . limited to, any knife, cutting instrument, cutting tool, nunchaku, firearm, shotgun, rifle and any other tool, instrument or implement capable of inflicting serious bodily injury.”

Schools in Pennsylvania and other states have taken the concept of items capable of inflicting serious bodily injury to ridiculous extremes. For instance, according to media reports in 2013, a seven-year-old boy brought an ink pen to Hershey Elementary School. Apparently, the pen buzzed or vibrated when touched a certain way, presumably to startle the unsuspecting user. The boy’s principal did not see the novelty in the item. She said it was a weapon and suspended him for four days.

Over the past decade, newspapers have been littered with similar stories of so-called weapons. From the craft scissors of elementary students to the fingernail clippers of the hygienically obsessed student to the butter knife of a culinarily exacting student, schools have concluded that students are carrying weapons, sometimes even when those items turn up accidentally in a student’s backpack. Schools have taken similarly broad approaches to the meaning of drugs. According to reports, students have been expelled for various everyday over-the-counter medicines that they had brought to school for legitimate reasons.

Some districts take zero tolerance toward weapons even further. They punish students for just thinking or talking about them. Students have been suspended or expelled for drawing pictures of weapons, chewing their Pop-Tarts into the shape of weapons, making gun gestures with their hands on the playground, having squirt guns in their possession, and simply writing stories that included guns or violence in them.

In all fairness, these behaviors could be early warning signs of a troubled student. But more often, they are signs of a playful and normally developing child. Even in those rare instances when the behavior is a warning sign, summarily suspending a student is not an effective way to respond. Yet many schools and states do not distinguish between the normal and troubled child.

Even when schools can tell the difference between these students— which is not always easy—they refuse to do so. Some believe state law prohibits them from making reasonable distinctions. Others believe that making distinctions and exercising judgment are simply bad ideas. Either way, both groups adopt harsh discipline policies and procedures that remove all judgment and wisdom from official policy.

Dustin Seal’s experience at Powell High School in Knox County, Tennessee, offers one of the most obvious examples. One evening after school, Dustin left his friends waiting in his car while he went inside his girlfriend’s house. While he was gone, one of his friends put a hunting knife in the glove compartment and left it there. The friend had started carrying it—purportedly for self-defense—following an out-of-school altercation with another boy regarding a former girlfriend. When Dustin dropped his friend off later, the friend left the knife in the car. Dustin did not know his friend had put or left the knife in the car.

The next night, Dustin drove his friends to school for a football game and parked in the school parking lot. They were all members of the band and were to perform that night. At some point before the game, some other students told the band director that they had seen Dustin drinking what they believed to be alcohol with one of his friends. The band director questioned Dustin and his friend but released them because he did not smell any alcohol on them. Fifteen minutes later, the assistant principal decided to question them again. He did not find any evidence of alcohol either but decided he would search Dustin’s car. The search did not turn up any hint of drinking. It did, however, turn up the knife that had been left in the glove compartment. As with Benjamin Ratner, at that point, judgment and circumstances were cast aside.

School district officials quickly took steps to expel Dustin. They conducted several hearings at the school and district level. Everyone involved—from principals and the hearing officer to each school board member—agreed that they would expel him. At each point, the evidence was straightforward and uncontroverted. The only thing that mattered was that the knife was in Dustin’s car. That he and the others involved testified that he did not know it was there was irrelevant. They simply reasoned that the evidence “place[d] the knife in the glove compartment of the car [Dustin] was driving and which he parked on the campus of Powell High School. Possession of a weapon on school property is a violation of Knox County Policy.”

Initially, Dustin could do little more than watch the school system process him toward complete exclusion. But by the time Dustin reached the school board, he had secured an attorney, who pushed harder on the district’s simplistic reasoning. The attorney emphasized that the evidence showed that Dustin “had no idea that the knife was in his mother’s car [on the day in question], or at any other time that the car was on school property.” A school board member then directly questioned Dustin on this point, and Dustin reiterated his ignorance of the knife in his car. The school board member’s response indicated that he believed Dustin.

"The problem I see is that we always have to be consistent in sending a clear message to students. Two or three years ago we were dealing with guns, guns, guns. Now, it’s down to knives, knives, knives and I don’t want to send a confusing message. Justin [sic], you are responsible for what’s in your car and that’s where I’m torn but I would have to say that you have to be held responsible as a driver for what’s in your car. And that’s a problem that you’re going to have to deal with."

The board then voted unanimously to affirm Dustin’s expulsion.

In subsequent litigation, the board’s position grew even more interesting. Before the Sixth Circuit Court of Appeals, the board asserted that it could and would expel ignorant, or otherwise innocent, students because intent just does not matter under its rules. Shocked at such a bold assertion, one of the judges pressed the board’s attorney. The judge asked “whether the Board was seriously arguing that it could expel a student for unconsciously possessing a dangerous weapon.” The judge “pos[ed] a hypothetical example involving a high-school valedictorian who has a knife planted in his backpack without his knowledge by a vindictive student.” The judge asked “whether the valedictorian would still be subject to mandatory expulsion under the Board’s Zero Tolerance Policy, even if the school administrators and the Board members uniformly believed the valedictorian’s explanation that the knife had been planted.” The board’s attorney still responded yes. “After all, counsel argued, the Board’s policy requires ‘Zero Tolerance,’ and the policy does not explicitly say that the student must know he is carrying a weapon.” Dustin ultimately won his appeal, but only by a two-to-one vote. Moreover, his victory stands largely as an outlier among various other courts that have affirmed districts expelling students under similar circumstances.

Zero-tolerance and harsh-discipline responses like these to so-called weapons and drugs reveal a problematic mind-set that undermines rational decision making. The districts and states that adopt these policies never seriously grapple with the goals they are trying to achieve and whether their policies are necessary, much less effective. Rule making and unflinching adherence to rules—regardless of whether the rule and punishment make sense—become ends in and of themselves. States and schools never stop to question whether elementary school students using scissors as real weapons are but remote possibilities or viable threats around which to build a rule. Nor do they stop to seriously examine whether rules for the sake of rules actually make schools safer and improve student behavior instead of simply producing more school exclusions. Most often, these policies are assertions of power that few schools and states have ever seriously questioned. In this respect, they are attempts by states and schools to delude themselves—or the public—into believing they are creating more orderly environments. The truth is that they are often doing the opposite.

African American, Latino, poor, and disabled students are punished at much higher rates than white students are. This inequality starts at the very earliest levels of school and proceeds through high school.

In elementary school, while only 1.6 percent of white students are suspended each year, more than 7 percent of African Americans are suspended. In other words, African American elementary school students are nearly five times as likely to be suspended as whites. In high school, the suspension rates jump for everyone. The suspension rate for whites is 6.7 percent—which ironically still makes an African American student in elementary school more at risk of suspension than a white student in high school. The African American suspension rate is 23.2 percent in high school, more than three times the rate of white high school students. The suspension rate of Latinos, Native Americans, and English-Language Learners are all nearly twice the rate of whites.

These racial disparities in discipline are not new. In the 1970s, when the Office for Civil Rights first began tracking discipline, the data showed that African Americans were suspended at two to three times the rate of whites. The initial theory was that discriminatory discipline became a means by which many schools managed, if not resisted, school desegregation. If white schools could not keep African Americans from entering, they could still try to treat African Americans differently, including kicking out enough to keep the remaining students “in their place.”

While outright bias and resistance have significantly dissipated, the passage of time alone has not healed these wounds. Explicit bias has become implicit bias. De jure segregation and inequality, while significantly reduced between 1970 and the late 1980s, have returned as de facto segregation and inequality. Bias, segregation, and inequality now intersect with generally bad ideas about discipline to make matters worse.

Zero tolerance, ironically, was proposed by some advocates as a cure to certain biases and disparities in the discipline system. They would remove discretion from discipline by making certain punishments mandatory. Without discretion, racial bias would lack an obvious entry point into disciplinary decisions, and racial disparities might plummet. In other words, if all students involved in fights are automatically suspended, schools would necessarily treat students equally, even if suspensions went up.

Advocates, however, misjudged where the discriminatory discretion was occurring. It was primarily in the classroom, not the principal’s office. Teachers send African Americans to the office at much different rates than they send whites, even when the students engage in similar behavior. Zero tolerance prevents principals from second-guessing teachers and sending students back to class. Even if a principal believes school exclusion is inappropriate in a given case, zero-tolerance policies can require the principal to suspend anyone who lands in his or her office. Thus, the primary effect of zero tolerance has been to amplify discrimination rather than reduce it. Teachers retain the discretion to discriminate, and zero-tolerance policies force principals to perpetuate it. For this reason, it should come as no surprise that racial disparities in suspensions have increased in many places since 1970.

These discipline disparities, in no small part, also contribute to a lingering achievement gap between African Americans and whites. With African Americans disproportionately removed from the learning environment, they are necessarily academically disadvantaged. As the Harvard Civil Rights Project bluntly puts it, “we will close the racial achievement gap only when we also address the school discipline gap.”

But some reports indicate that the achievement gap may also have reciprocal effects on discipline. In effect, high-stakes testing policies have created an incentive for schools to exclude students on the bottom of the achievement gap. With schools under intense pressure to increase overall student achievement, a low-achieving student who also exhibits mild to moderate levels of misbehavior could be become an immediate target for exclusion.

One researcher found specific evidence that, after the passage of the No Child Left Behind Act, some schools “reduced their suspension penalties for higher-achievers in high-stakes grades (grades four, five, eight, and ten) during the testing window, [and] they raised their suspension penalties for lower-achievers in these same grades at this time.” A decade into the high-stakes testing regime of No Child Left Behind, the Advancement Project concluded that “both the use of highstakes tests and the severity of the consequences attached to them have risen dramatically, leading to a rapidly dwindling set of opportunities for students who do not score well on these exams.” In short, the interaction between high-stakes testing and harsh school discipline creates perverse incentives.

Whatever the results for individual students or students in particular demographic groups, however, some educators would say suspensions and expulsions protect other students and ensure their academic opportunities. While unfortunate, high suspension rates, negative life outcomes, and racial disparities are necessary evils. This reasoning has intuitive appeal, which helps explain why harsh discipline persists. The problem is that the facts do not support the argument.

Report after report demonstrates that high suspension rates and harsh discipline do not deter misbehavior, keep the environment orderly, or make schools safer.

Derek W. Black is Professor of Law at the University of South Carolina School of Law.

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