Scrap Zero Tolerance Rules

Howard’s Daily by Philip K. Howard

A learning environment in schools requires safety and order. "Zero tolerance" rules, which first surfaced in the early 1990's, were intended to guarantee safety. School cultures had corroded in the wake of the "due process revolution," and absolutist rules were intended to shore up principals’ authority to act promptly in the face of violent or anti-social behavior.

But the rigid legal approach exemplified in zero tolerance rules has instead fostered a downward spiral of cynicism and legalisms. The worst offenders still argue over discipline—can you prove it? Meanwhile, every few weeks, there are news reports of children suspended for harmless activities: for example, the first-grader suspended for kissing a girl’s hand, or the seventh-grader suspended because she had "possession" of a pill for one second (before she immediately rejected it), or the honors student expelled because a kitchen knife was in the bed of his pickup truck (it had fallen out while he was helping his grandmother move), or the second-grader suspended because he munched his pop tart into the shape of a gun.

Zero tolerance rules have become a standing joke—a reflection of educators’ lack of authority, not a useful tool of school order.

Now comes the Florida legislature with a bill, sponsored by the National Rifle Association, to supposedly solve the unfairness of rigid zero tolerance rules. Its first flaw is that the bill fights the scourge of "overlegalization" with more legalisms. It requires every school to come up with a detailed code of conduct. Its second flaw is that it is transparently designed to serve the NRA agenda, not the unfairness of rigid rules. Here is an excerpt of the NRA’s mono-minded proposal:

Simulating a firearm or weapon while playing or wearing clothing or accessories that depict a firearm or weapon or express an opinion regarding a right guaranteed by the Second Amendment to the United States Constitution is not grounds for disciplinary action…. Simulating a firearm or weapon while playing includes, but is not limited to:

1. Brandishing a partially consumed pastry or other food item to simulate a firearm or weapon.
2. Possessing a toy firearm or weapon that is 2 inches or less in overall length.

I especially like the reference to the Second Amendment—do children worry about a constitutional right to bear arms?

Let’s start again. Fairness almost always requires context. Unilaterally kissing a girl may be excusable in a kindergartner but not in a high school senior. Brandishing a switchblade is different than accidentally leaving a kitchen knife in the bed of a truck. Making a drawing of a gun is different than bringing a gun. That’s why zero tolerance rules are counterproductive, fostering a culture of legal argument instead of being tethered to community norms of right and wrong.

Fairness, in other words, always requires human judgment. Educators must get their authority back. That doesn’t mean they can do anything they want. It is easy to have, say, a teacher-parent committee, or even a student committee, to look at charges of unfair discipline. But only in the most extreme cases should school discipline end up in a legal proceeding. Students are being sent home, not to jail. 

As a first step to a solution, instead of using the silliness of zero tolerance as a vehicle to advance one agenda, it would be more constructive to come up with a model statute that restores common morality to disciplinary decisions. Several years ago, Texas repealed its zero tolerance regime, requiring instead that educators consider factors like a student’s intent when making disciplinary decisions.

Here is my proposed model statute:

"Notwithstanding any rule, including zero tolerance rules, a principal shall have no legal obligation to discipline a student where circumstances are such that the principal believes discipline would be unjust or unfair."

A statute like this would obviate the overreactions to students playing cowboys or soldiers, and also all other rigid overreactions. Bad law should be fixed, not used as a vehicle for self-interested propaganda.