Educational Administration Quarterly

Vol. 39, No. 2 (April 2003) 238-258

10.1177/0013161X03251154

Educational Administration Quarterly

Sughrue / ZERO TOLERANCE

ARTICLE

Zero Tolerance for Children:

Two Wrongs Do Not Make a Right

Jennifer A. Sughrue

The federal government, through the Gun-Free Schools Act of 1994 (GFSA), required
states to enact zero tolerance legislation mandating school districts to expel students
automatically for a period of one year if they brought weapons to school. Under threat of
losing federal education dollars, states complied. In turn, school districts developed
disciplinary policies that reflected state mandates. In Virginia, as in other states,
concern has mounted that application of these policies sometimes results in inequitable
and nonsensical treatment of children. In this paper, the evolution of zero tolerance
policies is traced from their progenitor, the GFSA, to the school district level. Utilizing
Virginia as an example for the emergent case law, this article illustrates the debate on
zero tolerance consequences among which may deny students access to schooling and
ultimately development as reflective members of a democratic society.

Keywords: zero tolerance; discipline; education policy; Gun-Free Schools Act

Children and teenagers mature cognitively and emotionally through their

life experiences, education, and guidance from adults. They, however, do not
acquire knowledge, reason, and wisdom without trial and tribulation (Ayers,
Dohrn, & Ayers, 2001). It is incumbent on adults to aid children in their
growth and through this often difficult process by articulating expectations,
by instructing children when they err, by establishing reasonable responses to
undesirable behavior, and by helping students develop better problem-solving
and social skills (Opportunities Suspended, 2000; Peden, 2001). When a
discipline problem does arise, it is should be evaluated in light of the

Authors Note: This article was prepared for submission to Educational Administration Quar-
terly. The author, Jennifer A. Sughrue, is an assistant professor in the Educational Leadership
and Policy Studies program at Virginia Polytechnic Institute and State University. Correspon-
dence regarding this article may be mailed to 213 E. Eggleston Hall (0302), Blacksburg VA,
24061, or the author may be contacted at (540) 231-9707 or jsugh@vt.edu.
DOI: 10.1177/0013161X03251154
2003 The University Council for Educational Administration

238
 Sughrue / ZERO TOLERANCE 239

circumstances in which it occurred and in view of the intent and understand-

ing of the child (Levick, 2000). When punishment is merited, it should be a
measured response, proportional to the infraction (Haft, 2000; Wasser,
1999).
Nowhere is this more appropriate than in public schools with their
dynamic mix of children and adults. Not unexpectedly, the multitude of
expectations, interactions, and ages can result in misunderstandings, misbe-
havior, and poor judgment. That is why it is considered legally sound to have
narrowly tailored statutes (Peden, 2001), well developed and explicit district
policies (Essex, 1999), and published codes of conduct that explain to chil-
dren and their parents school rules and regulations and disciplinary proce-
dures (Colwell & Schwartz, 2001). However, what are legally sound policies
for schools do not equate necessarily to developmentally sound policies for
children (McNeely, Nonemaker, & Blum, 2002; Opportunities Suspended,
2000).
Zero-tolerance policies are school or district polic[ies] that [mandate]
predetermined consequence/s or punishments for specific offenses (U.S.
Dept. of Education, 1998). As their name and definition imply, these policies
are no-nonsense unequivocal responses to disciplinary problems involving
weapons, drugs, and even speech (Hill, 2001; Insley, 2001; McKinney,
2001).
Some of the literature centering on zero-tolerance policies articulate con-
cerns that the educators role in helping children learn from their mistakes
and develop good judgment has diminished in recent years with the advent of
zero-tolerance policies (Opportunities Suspended, 2000). Likewise, there
is apprehension that school-level administrators are having their professional
judgment usurped when dealing with student misbehavior. Not unlike
teacher reactions to standardized curriculums, some administrators find the
policies an imposition on their professionalism and expertise whereas others
find comfort in their prescriptiveness.
Sometimes, the offenses that have come to light under zero tolerance do
not even entail weapons, drugs, or true threats but rather involve common
health aids (Smartt v. Clifton, 1997), truancy (Ariz. Rev. Stat. Ann. 15-
841[B]), and speech (LaVine v. Blaine School District, 2001). Often, punish-
ment for offenses under zero-tolerance policies are harsh and automatic, with
seemingly little consideration given to individual circumstances and to
teaching children about fairness, justice, and common sense (Levick, 2000).
Concern about the nature and application of zero-tolerance policies
should not be construed as a lack of understanding about the needs of school
districts to ensure a safe learning environment and to protect students and
school personnel from violence and drugs. In fact, laws and policies
240 Educational Administration Quarterly

governing criminal behavior in schools, which cover students who know-

ingly and intentionally bring weapons or illicit drugs to schools, are recog-
nized as legitimate. It is the extension of those laws into overreaching school
district zero-tolerance policies that treat criminal acts and misbehavior as
equally offensive and the translation of those policies into ill-considered
practice that have drawn criticism (Haft, 2000; Wasser, 1999). The
overinclusiveness of these policies has transformed what had previously
been viewed as normal child misbehaviors into actions requiring severe
responses that can push a student out of public education (Levick, 2000;
Opportunities Suspended, 2000).
In this article, the appropriateness of zero-tolerance policies is examined
by tracing the development of the concept of zero tolerance from federal law
to school policy. In particular, Virginia law requiring students to be expelled
for possession of weapons and drugs and for a variety of behaviors is exam-
ined, and a comparison of that law with a sample of Virginia public school
district policies is made. This is followed by a review of case law in Virginia
and other states that illustrates the application of these policies and the gen-
eral position of the judiciary on the matter.
This is followed by an examination of the debate on zero tolerance,
through which arguments and questions are posed about this trend in which
disciplinary procedures no longer treat children as children but as adults.
Debate is raised as to whether zero-tolerance policies require children to rea-
son and to act in ways that they are not yet developmentally capable of doing.
Finally, readers are asked to reflect on the potential effects of isolating large
numbers of children and denying them access to instruction, which ill-
prepares them to be civil, productive, and, perhaps most importantly, reflec-
tive members of a democratic society.

EVOLUTION OF ZERO-TOLERANCE POLICIES

The concept of zero tolerance as a policy tenet was adopted by federal and
state agencies in their war against drugs in the 1980s (Henault, 2001; Skiba &
Peterson, 1999). Zero tolerance gained prominence when a U.S. attorney in
San Diego incorporated the phrase into the name of a program in which U.S.
Customs Service officials could impound sea craft found to have drugs
aboard. The phrase gained further renown under the stewardship of U.S.
Attorney General Edwin Meese and soon became the catch phrase for a broad
array of public policy directives and of exclusionary practices (Skiba &
Peterson, 1999).
 Sughrue / ZERO TOLERANCE 241

By the early 1990s, after harsh criticism, threats of lawsuits, and a few
embarrassing incidents, the U.S. Customs Service began to retreat from its
initial stringent enforcement of zero-tolerance policies. Ironically, by then a
few public school districts had embraced the notion of zero tolerance for
drugs, gang activity, or generally any form of disruption in schools (Henault,
2001; Skiba & Peterson, 1999).
For the most part, however, state statutes authorizing zero-tolerance poli-
cies are progeny of the federal Gun-Free Schools Act of 1994 (GFSA).
Through this statute and its threat of withholding federal education dollars,
Congress required all states to fashion legislation that incorporated three
components. First, the state legislation must mandate students be expelled for
at least 1 year for bringing firearms to school. Second, schools would be obli-
gated to refer these students to the criminal justice or juvenile justice system.
Last, the statute also would stipulate that state law allow the chief adminis-
trating officer of [the] local educational agency to modify such expulsion
requirement for a student on a case-by-case basis (20 U.S.C. 8921[b][1]).
Administrative discretion was to be the moderating influence over an other-
wise severe disciplinary response. A fourth requirement of the GFSA obli-
gated school districts to report discipline statistics to the federal government
annually.

STATES COMPLY WITH GFSA

All states complied to varying degrees by enacting assorted versions of the

required legislation (Insley, 2001; Wasser, 1999). This transition from federal
mandate to state statute is the first evidence in this analysis of how the transla-
tion from law to practice is not without deviation and can have both positive
and negative consequences.
In this very first step, from federal law to state law, variations emerged.
The trend was one of moving toward more exclusionary practices, incorpo-
rating an array of offenses and behaviors not identified in the GFSA. Included
among actions and behaviors that could result in automatic suspension or
expulsion were ordinary schoolyard fights, verbal abuse, possession of
tobacco or alcohol, and even chronic tardiness (Bradley, 2002; Insley, 2001;
Wasser, 1999).
Fifteen states and the District of Columbia crafted statutes that incorpo-
rated the three following primary federal requirements: mandatory expul-
sion, mandatory referral of the student to justice officials, and authorization
of the Location Education Agencys (LEA) chief administrating officer to re-
consider expulsion recommendations on a case-by-case basis (Insley, 2001;
242 Educational Administration Quarterly

Wasser, 1999). Pennsylvania law is illustrative of how the 15 states aligned

the language of their statutes with intent of the GFSA:

[A] school district or area vocational-technical school shall expel [emphasis

added], for a period of not less than one year, any student who is determined to
have brought onto or is in possession of a weapon on any school property, any
school-sponsored activity or any public conveyance providing transportation
to a school or school-sponsored activity. (PA Stat 24-13-1317.2[a])
The superintendent of a school district or an administrative director of an
area vocational-technical school may recommend modifications of such ex-
pulsion requirements for a student on a case-by-case basis [emphasis added].
(PA Stat 24-13-1317.2[c]).
The school superintendent or chief administrator shall report [emphasis
added] the discovery of any weapon prohibited by this section to local law en-
forcement officials. (PA Stat 24-13-1317.2[f][2])

Twenty-seven states did not include the GFSA provision requiring that
students who bring firearms to school to be reported to the criminal or juve-
nile justice system (Insley, 2001). However, as will be illustrated later, some
of these states may have already had provisions for such reporting in place.
Four states had general provisions for expulsion but did not modify these
provisions to specify firearms (Insley, 2001). Nebraska and New Jersey
enacted statutes that required knowledge of and intent to bring a weapon to
school before a student could be summarily expelled (Neb. Rev. Stat. 79-
263; N.J. Stat. Ann. 18A:37-7).
Arizonas and Colorados compliance with the GFSA is illustrative of a
more broadly crafted response. Those state legislatures drafted expulsion
statutes that met the federal mandate on firearms but that also included addi-
tional offenses for which students had to be expelled. The Colorado legisla-
tion included robbery and assault as offenses that qualify students for manda-
tory expulsion. Arizona also required students who had passed the age or
grade requirement under compulsory education law to be expelled for
chronic absenteeism (Ariz. Rev. Stat. Ann. 15-841[B]).
In both Arizona and Colorado, drug possession, ongoing open defiance,
and continued disorderly or disrupted conduct also earn students automatic
expulsion. Under Colorado law, students are deemed habitually disruptive if
they have been suspended for disorderly conduct three times during the
school year (Colo. Rev. Stat. 22-33-106[1][c][II]), with the fourth incident
resulting in expulsion.
As what happened in times past when the federal government issued edu-
cational mandates, the 50 states complied with the GFSA to protect their fed-
eral dollars. However, as evinced from the examples above, many states used
 Sughrue / ZERO TOLERANCE 243

this opportunity to take a stronger stand on safety in public schools, expand-

ing the scope of their legislation to cover a number of other criminal acts,
including drugs and violence. Also evident from the statues enacted in some
states, there were policy makers who believed school violence could be
abated further by threatening suspension and expulsion for noncriminal
behavior such as truancy and disorderly conduct.
There was strong public support for the GFSA and subsequent state action
because of concerns about school violence. Although these enactments pre-
dated most of the highly publicized school shootings and other acts of vio-
lence in schools, such as what occurred at Columbine High School, there
were federal government reports that quantified an increase in student fears
about violence at schools, in the number of students involved in violent acts,
and in violent acts against teachers in public schools (Kaufman et al., 1998;
Wasser, 1999). What is unclear, however, is if the public at large, and more
importantly, families with children in public school, was aware of the breadth
of some of these statutes and district policies.

COMPLIANCE IN VIRGINIA

Virginia was among the 27 states that enacted legislation that complied
with the federal mandate for an automatic 1-year expulsion for students who
bring weapons to school and for authorizing a school administrator to review
expulsion recommendations on a case-by-case basis but that did not include
language requiring notification to law enforcement. There was no need for
the Virginia General Assembly to include a provision for reporting a student
to the police for a weapons violation because legislation already existed that
required principals to report criminal acts to police ( 22.1-279.3:1[D]).
Under the Virginia criminal code, any person possessing a stun weapon or
taser . . . knife, except a pocket knife having a folding metal blade of less than
three inches, or weapon, including a weapon . . . other than a firearm on
school property, at a school-related activity, or on a school bus is guilty of a
Class 1 misdemeanor. Likewise, any person possessing any firearm
designed or intended to propel a missile of any kind while on school
grounds, at a school-sponsored event, or riding on school transportation is
guilty of a Class 6 felony ( 18.2-308.1). Hence, a student with a weapon at
school is committing a crime and will be reported to law enforcement.
What the General Assembly did enact in response to the GFSA has lan-
guage similar to that which Pennsylvania and other states used.
244 Educational Administration Quarterly

In compliance with the . . . Gun-Free Schools Act of 1994, a school board shall
expel from school attendance for a period of not less than one year any student
whom such school board has determined . . . to have brought a firearm onto
school property or to a school-sponsored activity. . . . A school administrator,
pursuant to school board policy, or a school board may, however, determine,
based on the facts of a particular situation, that special circumstances exist and
no disciplinary action or another disciplinary action or another term of expul-
sion is appropriate. A school board may promulgate guidelines for determining
what constitutes special circumstances. In addition, a school board may, by
regulation, authorize the division superintendent or his designee to conduct a
preliminary review of such cases to determine whether a disciplinary action
other than expulsion is appropriate. (VA. Stat. Ann. 22.1-277.07[A])

Since passage of that statute, the meaning of firearm has been expanded to
include other weapons and destructive devices. By statutory definition, de-
structive device means any explosive, incendiary, or poison gas, bomb, gre-
nade, rocket, missile, mine, or similar device ( 22.1-277.07[D]). This lan-
guage was adopted virtually verbatim from the U.S. Code definition of
firearms (Firearms 18 U.S.C.A. 921 [4]).
In 1998, Virginia expanded its automatic expulsion policy to include drug
offenses. Students caught with a controlled substance, imitation controlled
substance, or marijuana on school property or at a school function are to be
expelled unless there are extenuating circumstances that would indicate
another form of discipline would be more suitable ( 22.1-277.08). Having
controlled substances and marijuana is against the law, therefore school
administrators are required to report students to the local police.

From the Legislature to the State Board of Education

Virginia law charged the State Board of Education with the responsibility
of establishing guidelines and fashioning model student conduct policies to
help local school boards adhere to student attendance and disciplinary stat-
utes as they evolve. These guidelines and policies govern suspensions, expul-
sions, and standards for in-service training of school administrators, faculty,
and staff. Likewise, the General Assembly instructed the State Board to pro-
mulgate policies that prohibit obscene or profane language and conduct and
that allow school districts to regulate portable communication devices, such
as beepers and cell phones, and laser pointers ( 22.1-270.6[B]). The statute
also authorized local school boards to adopt student conduct regulations that
are more stringent than those developed by the State Board of Education, as
long as the policies remained consistent with Virginia law ( 22.1-270.6[B]).
 Sughrue / ZERO TOLERANCE 245

From the State Board to School Districts

Based on Virginia Department of Education fall 2001 membership data,

Virginia has 132 operational school districts. Fairfax County Public Schools,
located in northern Virginia and near Washington, D.C., is among the 15 larg-
est school districts in the nation. However, most districts are relatively small
and located in rural and small urban areas. Of the 132 districts, 84 (64%) have
average daily memberships of fewer than 5,000 students. These small dis-
tricts lack the personnel and the funds to revise their policies and regulations
year to year.
In response to this problem, the Virginia School Board Association
(VSBA) provides a service, for a fee, in which policy manuals are constructed
for individual school districts. Each year, revisions that reflect changes in
state law and policy are provided to the school districts that purchase this ser-
vice. This service also offers policy options for school districts that prefer to
have policies and regulations that are consistent with but may be more strin-
gent than those set forth by the General Assembly and State Board of Educa-
tion. However, if local school boards make changes to the manuals after they
receive them, the VSBA warns it cannot support the modified policies or reg-
ulations in the event of a legal challenge.
Condensed versions of the policies and regulations that govern each
schools instructional program and its student body are published and distrib-
uted as student handbooks within 1 calendar month of the opening of school
( 22.1-279.3[c]). Required sections include a statement addressing each
parents duty to assist the school in enforcing the standards of student con-
duct and attendance in order that education may be conducted in an atmo-
sphere free of disruption and threat to person of property, and supportive of
individual rights ( 22.1-279.3[A]) and school board standards of student
conduct. A copy of the complete policy manual is available to parents and
students and usually is housed in the school library.

From the Central Office to the School

In the course of this research, I mailed a request for student handbooks to

each of the superintendents in Virginia public schools. Of the 132 districts, a
variety of AY 2001 to 2002 elementary, middle, and high school handbooks
from 98 districts were sent or the URLs of Web sites on which codes of con-
duct were posted were e-mailed to me.
Considering the large number of small districts, many of which depend on
VSBA to fashion policy manuals in accordance to state laws and regulations,
246 Educational Administration Quarterly

I was not surprised to find little variation among districts in the policies or
regulations that articulate student conduct and discipline in Virginia public
schools. This was particularly true of those policies that addressed the re-
quired and most serious aspects of student conduct and discipline, such as
possession of weapons. Following are excerpts from two student handbooks
from different regions of the state that are representative of the majority of
those received. The second example is an excerpt from an elementary school
handbook.

Example 1: A student carrying, bringing, using or possession any firearm or

weapon in any school building, on school grounds, in any school vehicle or at
any school sponsored activity without the authorization of the school or the
school [district] is prohibited. A student who is found to have carried, brought,
used or possessed a firearm in violation of this policy shall be expelled for no
less than one calendar year (365 days).
Example 2: Students are prohibited from having possession of any firearms or
other dangerous or unnecessary articles while on school property, and at any
school activity. Violators shall be subject to discipline by the administration
and will be charged for violation of civil law [sic]. Specifically, students who
bring a firearm to school will be expelled from school for a period of not less
than one year. . . . Please note that knives, toy guns, and look-alike guns are
considered weapons under the law.

Some handbooks had comprehensive language on offenses involving

weapons, with exhaustive lists of what were deemed weapons and with ex-
tensive information regarding penalties for violations of weapons policies.
Below is an excerpt from a student handbook in a third school district that is
representative of those that provide descriptive lists of weapons.

Example 3: No student shall possess any weapon for any reason while under
school control or supervision. The term weapons is construed broadly to cover
and include any instrument that could injure, harm or endanger the physical
well being of another person. The term includes but is not limited to:
Category A:
Any stun weapon, or taser;
Any pistol, shotgun, revolver, or other weapon designed or intended to pro-
pel a missile of any kind whether loaded or unloaded, whether operable
or inoperable;
Any dirk, Bowie knife, switchblade, ballistic knife, any knife with a blade
three inches or longer, razor, slingshot, spring stick, brass or knuckles,
or blackjack;
Any failing instrument consisting of two or more rigid parts connected in
such a manner as to allow them to swing freely, which may be know as
nunchanhka, nun chuck, nunchaku, shuriken, or fighting chain;
 Sughrue / ZERO TOLERANCE 247

Any disc of whatever configuration, having at least two points or pointed

blades, and which is designed to be thrown as a throwing star or oriental
dart;
Any weapon of like kind as those enumerated in items 1 through 5 hereof;
Any weapon, including a starter gun, which will, or is designed or may
readily be converted to, expel a projectile by the action of an explosive
or the frame or receiver of any such weapon;
Any firearm muffler or firearm silencer; and
Any destructive device defined as (i) any explosive, incendiary, or poison
gas, bomb, grenade, rocket; (ii) any weapon, including shotguns; and
(iii) any combination of parts either designed or intended for use in con-
verting any device into any destructive device described in this subsec-
tion and from which a destructive device may be readily assembled.
Destructive device shall not include any device which is not designed
to be redesigned for use as a weapon and which is redesigned for use as a
signaling, pyrotechnic, line-throwing, safety, or other similar device.

All the handbooks specified who may reconsider a mandatory expulsion,

as required under Virginia law and school district policy, on a case-by-case
basis and in light of special circumstances. Consequences shall be deter-
mined on the basis of the facts presented in each instance of misconduct in the
reasonable discretion of the Board, its designated committees and other ap-
propriate school officials. Likewise, [t]he local school principal has the re-
sponsibility and authority to exercise reasonable judgment in enforcing [the]
Code of Conduct (excerpt from an elementary school handbook).
Virginia law permits local school boards to promulgate guidelines for
determining what constitutes special circumstances ( 22.1-277.07[A]).
However, none of the handbooks used for this analysis provided any guid-
ance or requirements as to what situations or special circumstances would
warrant reconsideration. Apparently, it is left to the discretion of the school
official or school board, or its designated committee, to determine if a year-
long expulsion or other lesser penalty is appropriate.
In summary, all the district policies reviewed require the mandatory
expulsion for 1 calendar year for weapons violations, yet school officials are
permitted to use discretion when determining the appropriate disciplinary
response. Virginia law already required school administrators to report
crimes to law enforcement. Because possessing a weapon on school property
is a crime under the Virginia criminal code, no additional provision to require
reporting was necessary.
Virginia law and student codes of conduct are also representative of the
trend of many states to extend the scope of zero tolerance, requiring manda-
tory expulsion for possession or use of drugs in schools. Yet, again, chief
248 Educational Administration Quarterly

school administrators can apply their professional judgment in deciding

whether to expel, to suspend, or to refer to drug counseling any student who is
in violation of the drug policy.
Other acts that result in police notification and can result in suspension
and expulsion in Virginia schools include but are not limited to: possession of
alcohol and tobacco; bullying, fighting, or other intentional injury; extortion,
blackmail, or coercion; theft; sexual assault; assault or battery; bomb threats,
including false threats, against school personnel or school property; mali-
cious mischief; driving without a license on school property; obscene phone
calls; unlawful interference with school authorities (including threats);
unlawful intimidation of school authorities; and, being an accessory to any of
these or other unlawful acts. Other conduct that is subject to disciplinary
action at the discretion of school authorities includes improper student dress,
unexcused absence or tardiness, disruptive conduct, profane or abusive lan-
guage, and gambling. It is easily discernible from these examples that there is
a lengthy continuum of behaviors, from criminal acts to poor judgment, that
fall under the purview of zero-tolerance policies in Virginia schools.

STUDENT RIGHTS AND

MANDATORY DISCIPLINARY ACTION

In light of the alignment between the elements of the GFSA and Virginia
law and school board policy, it would be reasonable to assume that applica-
tion of policy should follow as closely. As the handbooks evinced, there is
considerable breadth as to the kinds of student behaviors that merit manda-
tory punishments, yet there is discretion allotted school administrators. To
what degree school officials and school boards utilize discretion statewide or
nationwide is for another study.
What can be examined is student recourse to disciplinary action under
zero-tolerance policies. It is of interest to understand the legal balance
between a students protection under due process, civil rights, and other con-
stitutional guarantees and a school districts duty to provide for a safe and
orderly learning environment for all children. It is a balance that has been
weighed multiple times by the courts in, for instances, First and Fourth
Amendment challenges (e.g., New Jersey v. T.L.O., 1985; Tinker v. Des
Moines Independent Community School District, 1969), and is being deliber-
ated again in a new wave of litigation, one that is the result of zero-tolerance
policies.
 Sughrue / ZERO TOLERANCE 249

The Paring Knife

A prominent Virginia case, Ratner v. Loudoun County Public Schools

(2001), encompassed the primary constitutional issues and the general dispo-
sition of the judiciary evident in other zero-tolerance cases. Admittedly, it
also exemplifies what critics fear about zero tolerance, an unwillingness by
the superintendent or school board to modify disciplinary action in the face of
mitigating circumstances.
The Fourth Circuit Court of Appeals took under consideration a 1983
challenge by Benjamin Ratner, a student in a northern Virginia middle
school, who was disciplined when it was discovered he had a paring knife in a
binder in his locker. He came into possession of this knife by taking it away
from a friend who had made a credible threat to commit suicide. He had
known her for a couple of years and was aware she had attempted suicide in
the past. He stated his intention was to give the knife to his parents after
school and to persuade them to speak to his friends family (Hinkle, 2001).
During the course of the day, school administrators were told that he had
the knife. The dean called Ben in and asked him if he had the knife. When he
confirmed that he did, she asked him to retrieve it from his locker and bring it
to her. She allowed him to go to his locker unaccompanied, acknowledg[ing]
that she believed Ratner acted in what he saw as the girls best interest and
that at no time did Ratner pose a threat to harm anyone with the knife
(Ratner v. Loudoun County Public Schools, 2001, p. 141). In response to his
breech of school zero-tolerance policies regarding possession of a weapon,
Ratner was suspended for 10 days pending a recommendation by the superin-
tendent that Ratner be expelled.
The superintendents recommendation was approved. Ratners mother
appealed the decision to the districts discipline committee. The committee
upheld the suspension. With this, the Ratners filed with the federal district
court, claiming Fourteenth Amendment violations of due process and equal
protection. They also stated a claim for Eighth Amendment violation cover-
ing cruel and unusual punishment. The district court dismissed the suit, con-
cluding that the Ratners had failed to state a claim.
The Fourth Circuit agreed with the district court, but condensed the con-
stitutional issues to one of due process. The court ruled that the district had
provided Ratner with constitutionally sufficient, even if imperfect, process
(p. 142). It further added that [h]owever harsh the result in this case, the fed-
eral courts are not properly called upon to judge the wisdom of a zero toler-
ance policy of the sort alleged to be in place [here] . . . or of its application to
Ratner (p. 142).
250 Educational Administration Quarterly

The Fourth Circuits finding of sufficient due process is not an uncommon

result in zero tolerance or other cases involving disciplinary action. Although
public education is a recognized property interest that merits due process,
courts usually require only rudimentary procedures when suspensions are
short term (Goss v. Lopez, 1975; Smartt v. Clifton, 1997). Most schools have
policies in place that ensure that students are provided with notice of the
charges and are given a hearing with the opportunity to respond to the charges
(Insley, 2001).
Likewise, there is firm reluctance in the courts to mediate questionable
disciplinary action in schools. It is well established in U.S. Supreme Court
case law that courts will defer to the judgment of school officials in matters of
discipline (Tinker v. Des Moines Independent Community School District,
1969), even when the decisions of school administrators . . . [are] lacking a
basis in wisdom or compassion (Wood v. Strickland, 1975, p. 326). They
also must refrain from allowing individuals to use 1983 as a mechanism
through which to have federal courts correct school officials errors in judg-
ment or discretion, unless those errors infringe on constitutional protections
(Wood v. Strickland, 1975).
Yet there is evidence that courts will require school districts to adhere to
state laws that require superintendents and others the discretion to review rec-
ommendations for disciplinary action on a case-by-case basis. In Lyons v.
Penn Hills School District (1999), a seventh grade student was expelled for
possession of a Swiss army knife. During the trial court hearing, the school
district acknowledged that the board had adopted a zero-tolerance policy
but had not published it. Furthermore, the policy deprived the superinten-
dent and board of discretion in applying disciplinary action in response to
zero-tolerance regulations.
The lower court voided the districts policy, arguing it was in direct viola-
tion of state statues that required appropriate school officials have the discre-
tion to review disciplinary recommendations under zero-tolerance policies
and that parents be notified directly of these disciplinary policies. The Com-
monwealth Court of Pennsylvania, in upholding the lower courts findings,
chastised the school board for making rules which were outside their grant
of authority and policies which clearly frustrate[d] the clear legislative
intent that [the zero-tolerance] statute not be blindly applied (p. 1076).

Knowing or Conscious Possession

In response to decisions such as Ratner (2001), some legal scholars argue

that mandatory punishments or disciplinary penalties that are disproportional
 Sughrue / ZERO TOLERANCE 251

to the offense merit review under substantive due process (Cloud, 2001;
Insley, 2001; Peden, 2001). It is argued that such penalties lack a rational
nexus to legitimate educational goals and may be challenged as arbitrary or
capricious.
Courts, however, have chosen to narrow the application of substantive due
process in recent years to state actions that are characterized as arbitrary or
capricious or as shocking to the conscience in a constitutional sense
(County of Sacramento v. Lewis, 1998; Smartt v. Clifton, 1997). They also
have held that mandatory disciplinary policies by their very nature are not
arbitrary and will not succumb to judicial scrutiny unless there is no rational
relationship between the purpose of the policy and the means by which to
achieve that purpose (Mitchell v. Board of Trustees of Oxford Municipal Sep-
arate School District, 1980; Plyler v. Doe, 1982).
The rational relationship test was the focus in a Sixth Circuit case about a
high school student who was expelled for a knife found in the glove compart-
ment of his mothers car (Seal v. Morgan, 2000). One Friday evening, during
an event at the high school, Seals car, which was parked in the school parking
lot, was searched by the vice-principal. The search was in response to reports
by other students that Seal and Pritchert, his friend who had been riding with
him in his car, had been drinking. No evidence of alcohol was found, but the
knife, belonging to Pritchert, was. Seal claimed to have no knowledge that
Pritchert had placed the knife in the glove compartment.
The school principal suspended Seal pending a recommendation to the
school board to expel him. His mother appealed the decision to the boards
disciplinary hearing officer. He upheld the principals decision, which Seals
mother then appealed to the school board.
At the school board meeting, one of the members expressed concern that
the board not be viewed as vacillating on matters of discipline, explaining
that it must be consistent in sending a clear message to students (p. 572). He
further stated that Seal had to be held responsible as a driver for whats in
[his] car (p. 572).
Seals family initiated suit in federal district court against the principal,
the hearing officer, and all members of the school board, alleging Fourth and
Fourteenth Amendment violations. After having been identified by the court
as the only proper defendants in the case, the superintendent and school board
moved for summary judgment, claiming qualified immunity. The court
granted summary judgment for the Fourth Amendment and Fourteenth
Amendment equal protection claims, but denied it with regard to the Four-
teenth Amendment due process claim.
On appeal, the Sixth Circuit ruled that the school districts decision to
expel Seal, even though he claimed no knowledge of the knife, was not
252 Educational Administration Quarterly

rationally related to any legitimate state interest (p. 575). The court reasoned
that a student must have knowing or conscious possession of a weapon (p.
576), a common requirement in criminal proceedings. No student can use a
weapon to injure another person, to disrupt school operations, or, for that
matter, any other purpose if the student is totally unaware of its presence (p.
575).
One may recall that Nebraska and New Jersey included a statutory
requirement that students had to know of and intend to bring a weapon to
school before they could be summarily expelled (Neb. Rev. Stat. 79-263;
N.J. Stat. Ann. 18A:37-7). Perhaps the Sixth Circuit decision will inspire
other legislators and jurists to consider this as they further develop or rethink
zero-tolerance policies.

FIRST AMENDMENT

The review above of what may be characterized as the most common con-
stitutional challenges, due process and 1983, should not belie the breadth of
case law and the constitutional concerns they represent. Becoming promi-
nent are First Amendment challenges to disciplinary action that results in
suspension and expulsion. Although all the cases may not fall directly under
the purview of zero-tolerance policies, they do provide evidence of the disci-
plinary response school officials are taking against speech that is perceived as
a true threat or that is disruptive to the proper functioning of a school.
The Ninth Circuit recently ruled that a school district did not violate a stu-
dents free speech rights when it applied an emergency expulsion order to
him in response to a poem he had written at home several months prior and
had chosen to share with his teacher for her feedback (LaVine v. Blaine
School District, 2001). It contained violent themes, which concerned school
officials in light of school shootings around the nation at the time. The court
believed school officials when they said that the decision was made amid a
confluence of factors, sufficient to warrant the disciplinary action.
In an Eleventh Circuit case, nine students were questioned by school and
law enforcement officials when they were identified as those responsible for
publishing and distributing a pamphlet filled with inappropriate language
and that contained an image of the school principal, an African American,
with a dart through his head (Cuesta v. School Board of Miami-Dade County,
Florida, 2002). Under a Florida statute that has since been declared unconsti-
tutional, the misdemeanor charge of distributing anonymous literature that
contained a message of hate, contempt, or ridicule for an individual was
upgraded to a felony. One of the students, Cuesta, who was 18 years old was
 Sughrue / ZERO TOLERANCE 253

taken to an adult facility and strip searched as a matter of established proce-

dure before she could be processed for the charge. She later sued the school
for a 1983 claim, asserting the school board [was] liable for an allegedly
unlawful arrest stemming from a zero tolerance policy toward school
related crime (p. 964). The court ruled in favor of the defendants, ruling that
the school board could not be held accountable for the actions of law enforce-
ment. The policy required them to notify police but had no bearing on what
the police chose to do following that notification.
Although the challenge was not based on a First Amendment claim, it
does address issues of hate speech, zero-tolerance policies, and the role of
law enforcement in school discipline cases. In this case, efforts were made to
upgrade a misdemeanor to a felony, which would have had substantial life-
long consequences for Cuesta had the State Attorneys Office not come to the
conclusion that the statute under which the charge was made was going to be
declared unconstitutional. Although the actions of the nine high school stu-
dents were arguably reprehensible, questions remain about the ramifications
of a felony charge against a student whose crime was publishing and distrib-
uting a pamphlet.
Lastly, a student is not beyond the reach of disciplinary actions when he or
she creates and maintains Web pages at home that contain derogatory, pro-
fane, offensive and threatening statements, that are directed toward . . .
teachers and his principal, and when these pages result in substantial and
material disruption in the school (J.S. ex rel. H.S. v. Bethlehem Area School
District, 2002, p. 847). A middle school student who created such a site was
suspended for 3 days, which he challenged as violative of his First Amend-
ment rights. Although the court opined the content of the Web pages did not
pose a true threat (Lovell By and Through Lovell v. Poway Unified School
District, 1996; Watts v. United States, 1969), it did agree that the pages had
created a disruption when the teacher who was the object of much of the Web
pages ridicule was unable to perform her duties satisfactorily as a result.
It reasonably can be argued that school authorities need to act decisively in
instances in which speech is threatening, in which students knowingly bring
weapons to school, and in which students are in possession of drugs. It is clear
that the public and the courts will support policies that discourage such
behaviors. The controversy, perhaps, arises over the appropriate response to
such behaviors.
Advocates of zero-tolerance policies argue that removing students who
violate such policies from school diminishes the threat of violence and allows
those who adhere to school rules and regulations to focus on their education
in a safe and secure environment. Opponents assert that there is no evidence
of a causal relationship between zero-tolerance policies and declining school
254 Educational Administration Quarterly

violence. More importantly, they argue that removing students from schools
and not providing them with access to education may do more harm to society
in the long term.

QUESTIONING THE EFFICACY OF ZERO TOLERANCE

There is not much balance in the published debates between proponents

and detractors of zero-tolerance policies. The primary argument by propo-
nents, such as the American Federation of Teachers, is that properly applied
zero-tolerance policies have resulted in lower rates of school violence, partic-
ularly in urban areas (Feldman, 2000). Although recognizing there have been
episodes in which these policies have been imperfectlyand in some places
stupidlyapplied, advocates believe the principles that underlie them are
sound (Feldman, 2000, Introduction).
Opponents counter these assertions by alleging that no studies or other
evidence exist to substantiate a claim that zero-tolerance policies are directly
responsible for the current decrease in school violence (Adams, 2000; Skiba
& Peterson, 1999). Moreover, they assert that to the degree that data does
exist, there is evidence that school districts with strong zero-tolerance poli-
cies are still less safe than schools without them (Adams, 2000; Skiba &
Peterson, 1999) and that zero-tolerance policies are only effective when they
are one component of a structured disciplinary program (Wasser, 1999).
However, it is acknowledged that better and more extensive studies are
needed before definitive statements can be made either way.
Another argument against zero-tolerance policies centers on concern
about the increasingly blurry distinctions between misbehavior and violent
acts and the shrinking continuum of responses to rule violations. These two
points worry those involved with or interested in juvenile justice and school
discipline. Severely disciplining students for disruptive behavior requires
scrutiny because it affects children who are not a danger and who may need
counseling instead of banishment (Adams, 2000; Wasser, 1999). It also
ignores the fact that children understand fair treatment and respond poorly to
disciplinary measures that treat all students and all violations, regardless of
context and severity, the same (Adams, 2000; Haft, 2000). Research suggests
that schools with severe disciplinary consequences to relatively minor infrac-
tions leave children feeling less a part of their school (McNeely et al., 2002)
and less able to bond with adults at a time when it is essential in their develop-
ment (Opportunities Suspended, 2000).
There is also worry that state lawmakers and school authorities are advo-
cating measures that reflect current trends in adult criminal law and that are
 Sughrue / ZERO TOLERANCE 255

rooted in repression and retribution (Haft, 2000) rather than remediation

and rehabilitation (Adams, 2000; Insley, 2001; Opportunities Suspended,
2000; Peden, 2001). The fear is that normal, nonviolent [italics in original]
youth behavior and misbehavior [has become] further criminalized, all in the
name of safety (Dohrn, 2001, p. 89), whereas data indicate that schools are
the safest places to be. Less than 1% of violent crimes against students occur
in schools.
The American Bar Association (ABA), with its 40,000 members, has long
argued against mandatory sentencing guidelines in the criminal justice sys-
tem. It is only logical it would take a similar stand against a one-size-fits-all
approach to school discipline and would raise questions about schools
redefin[ing] students as criminals (Martin, 2001).
Most disconcerting is the accumulation of evidence that suggests there is a
racial disparity in the application of suspension and expulsion policies.
White students compose 63% of the enrollment but only 50% of suspensions
and expulsions. African American children represent 17% of public school
enrollment nationally, yet they represent 32% of out-of-school suspensions
(Opportunities Suspended, 2000, p. 7).
These statistics by themselves do not prove intentional discrimination, but
they suggest that such discrimination may be widespread. And, regardless of
whether the disparities are intentional or unintentional, the numbers are
nonetheless alarming (p. 7).
Another and final issue pertaining to the questionable value of zero-
tolerance policies is punishing students by denying them access to education.
There was no mandate in the GFSA to provide education to students who
were going to be deprived of their place in their regular schools. Furthermore,
not all states have statutes that require alternative education settings. When
crafting their zero-tolerance legislation, 36 states included possibilities for
alternative education. Of those 36, only 13 required such provisions as by
local school districts that expelled students under zero-tolerance polices
(Wasser, 1999). It is not difficult to conclude from this that students of color,
as those most affected by severe disciplinary practices, are the students who
are most likely to not have access to alternative educational services.
A further illustration of the problem is the number of students who do not
receive educational services during their displacement. Department of Edu-
cation data for 1996 to 1997 indicate that 44% of expelled students did not
have access to alternative educational opportunities (Wasser, 1999).
Applying this percentage to 1997 and 1998 numbers, Wasser calculated that
approximately 38,200 children and teenagers . . . were not offered any form
of alternative education (p. 762) for that year.
256 Educational Administration Quarterly

These issues collectively underpin the apprehension that many parents,

legal scholars, professional organizations, and even legislators have about
zero-tolerance policies. A Virginia legislator entered into the debate on zero-
tolerance this past year when he unsuccessfully tried to usher a bill through
the House of Delegates that would have prohibited school officials from sus-
pending students who defended themselves by using physical force (Bow-
man, 2002). He observed that the educational bureaucracy has decided its
too hard to determine whether someone is innocent or guilty, so theyre just
deciding everyone is guilty (Bowman, 2002).
Adoption and implementation of zero-tolerance policies seem to indicate
that the state, through its agents, the schools, has relinquished its role as en
loco parentis and has expanded its role as policeman. There is concern that
school administrators have readily relinquished discipline to law enforce-
ment officers who inhabit the hallways and other public areas of schools
these days.
There are probably few citizens in the United States who are not aware of
the horrific shootings at Columbine High School, perpetrated by two youths
who attended the school and resulting in 15 deaths and dozens of injuries,
some of the injuries serious and permanent. This and a rash of other multiple
attacks at schools over a 3- or 4-year period in the late 1990s have offered
high-profile justification for increasing security measures and introducing
zero-tolerance policies.
Little mention, however, is made of the fact that these shootings occurred
3 to 5 years after the implementation of zero-tolerance policies and that these
policies have little effect in stopping students who sit on a hill beyond the
school gates and target their classmates with a rifle or who burst through the
schoolhouse doors shooting.
There is no evidence that zero-tolerance policies have brought safety and
security to school communities. Schools have long been relative safe havens
for students, and juvenile crime was already in decline before the advent of
the GFSA and zero tolerance. As apparent from the case law examined, they
have had the effect of further stifling basic constitutional gains students had
made in recent decades. The courts have given broad leeway to schools to
enforce discipline in schools, even when it intrudes on First, Fourth, and
Fourteenth Amendment protections and offers little in the way of common
sense.
There is also evidence that suggest that those groups who were denied
access to education historically are yet the ones most likely to be denied
access to public education under zero-tolerance policies. Perhaps when the
number of children improperly educated because they were excluded
becomes a burden to our economy and to our way of life, a new generation of
 Sughrue / ZERO TOLERANCE 257

civil rights activists will appear and remind us of the value of an education
and of constitutional protections to a child and to a civil and democratic
society.

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Jennifer A. Sughrue is an assistant professor at Virginia Polytechnic Institute and State Univer-
sity, and her research interests are public school law, finance, and policy. Her most recent publi-
cation with M. D. Alexander is Best Practices, Best Thinking, and Emerging Issues in School
Leadership, in press.