Zero-Tolerance Discipline in Illinois Public Schools.

Given the increased scrutiny of discipline policies and procedures, school

authorities should be aware of the legal concerns raised by "one size fits all"

zero-tolerance discipline policies. This article examines the issue and offers

guidelines for school boards, administrators, and lawyers.

In response to the tragic school shootings nationwide and to governmental

initiatives designed to get tough on serious student misconduct - particularly

when it involves weapons, alcohol, and drugs - more and more public schools are

considering "zero tolerance" policies that impose severe, predetermined 

penalties for student misconduct. The federal government has entered the fray

with legislative enactments that purport to strengthen schools' authority to

temporarily exclude or expel students for drug and weapons offenses.

But the use of zero-tolerance disciplinary policies has come under fire from

media and interest groups and become an increasingly common subject of federal

and state litigation. The term "zero tolerance" is cavalierly used to describe

any decision to expel a student, as if there were a generally accepted

definition of the term.

This lack of a common definition is a problem for school officials as they

examine their disciplinary policies and procedures. Governor George Ryan has

acknowledged the problem, saying that "zero tolerance has to be defined on a

statewide basis...it can't mean one thing in one school and one thing in

another."1 Critics

of "zero-tolerance" policies cite as examples students who were suspended or

expelled for conduct that, they contend, did not warrant such serious

punishment. For instance, on March 3, 1998, Boston University's Daily Free

Press had an editorial entitled "Excessive Punishment," which read in

part:

A middle-schooler in Oregon takes a swig of Scope after lunch. An

eighth-grader tries to make his classmates laugh by sucking on an Alka Seltzer

tablet. A 13-year-old has Advil in her backpack rooted out by a drug-sniffing

dog. And a high school student brings an African tribal knife to her world

history class. What do these students have in common? They were each suspended

for their transgressions under zero tolerance policies at their

schools.

The real concern in these instances is not so much the propriety of

"zero-tolerance" policies but whether the punishment has some reasonable

connection to the misconduct in question or school officials have reasonably

determined that intentional misconduct occurred.

It is misguided, though, to suggest that zero-tolerance school policies are

inherently bad - obviously no school "tolerates" drugs, weapons, or serious

misconduct. The real question is whether the district should impose a

predetermined, uniform consequence, usually an extended expulsion, for specified

misconduct - for example, any possession of a weapon or drugs on school grounds,

regardless of the individual circumstances of the offense (this is the

definition of "zero-tolerance policy" for purposes of this article). The debate,

then, is over the automatic nature and severity of such punishments. Is a

singular, preordained punishment for any category of offense fair and

lawful?

II. The Decatur Incident

Much of the current debate over zero-tolerance policies in Illinois arises

not so much from thoughtful analysis as from the national media frenzy over the

Decatur School Board's expulsions of several students for their roles in a fight

at a football game. The melee was captured on home video and showed one group of

students attacking two other students. The tape was subsequently broadcast to a

national audience.

The principal issues ultimately were more political than legal, with the

Decatur incident receiving national scrutiny when the Rev. Jesse Jackson 

intervened on behalf of the students. In the litigation that followed in

Fuller v Decatur Public School Board of Education,2 the

students contended that the board had violated their constitutional rights by

relying on a zero-tolerance policy, allegedly punishing them as a group, denying

them due process, and improperly basing the decision on race.

The students argued that they were stereotyped as gang members and "racially

profiled" by the board. They also claimed that because the fight was short and

no guns, knives, or drugs were involved, expulsion was too severe a penalty.

This contention in particular - i.e., that misconduct is not truly serious

unless it involves drugs, guns or knives - suggested a fundamental

misunderstanding of public schools' authority to preserve order and safety by

imposing discipline that the local board deems appropriate and that the Illinois

legislature has authorized.

The Fuller court found that the students failed to show that the board

had adopted or practiced a "zero-tolerance policy." While the board had adopted

a resolution declaring a "no-tolerance position on school violence," the court

determined that the resolution had no impact on the students being disciplined.

The court found the "no-tolerance" resolution to be more of a political or

philosophical statement against criminal activity in schools than a formal

policy on student discipline.3 The

court determined that the board based its decision to expel on sufficient

evidence of serious misconduct and that local school board disciplinary

decisions are entitled to substantial deference by the courts.

Section 10-22.6 of the Illinois School Code4

authorizes boards to suspend and expel students pursuant to prescribed

procedures. Merely expelling students for serious student misconduct does not

equate to a zero-tolerance policy. Even a law or a policy that mandates

expulsion for serious misconduct would be lawful if properly drafted.

Section 10-22.6 authorizes a board to expel students guilty of gross

disobedience and misconduct for up to two years. For certain weapons offenses,

Illinois law provides for a mandatory one-year expulsion, giving the board and

superintendent authority to alter that penalty as appropriate. Whatever the

disciplinary measure, the process by which it is imposed must be consistent with

students' constitutional rights. Boards that impose mandatory penalties might be

unlawfully overstepping their authority to discipline if the policy supporting

the penalty is not carefully drafted and implemented.

III. Judicial Review of Zero-Tolerance Policies/Procedures

While there is no clear judicial guidance about how public schools can adopt

and implement zero-tolerance policies yet in Illinois, a number of courts in

other jurisdictions have considered them, with varying results.

For instance, in Lyons v Penn Hills School District,5 a

Pennsylvania appellate court examined the expulsion of a seventh grade "A"

student and chorus member for one year for violating a school district's

zero-tolerance weapons policy after an instructor observed him filing his

fingernail with a miniature Swiss army knife he had found in a school hallway.

The court held that the school board exceeded its authority in adopting its

zero-tolerance policy for weapons. According to the court, the policy denied the

exercise of discretion specifically required by statute - i.e., it did not allow

the superintendent to modify on a case-by-case basis expulsion sanctions for

students who possessed weapons.

Similarly, a federal district court in Colvin v Lowndes County Sch.

Dist.6 held

that a district violated a student's due process rights by expelling him under a

zero-tolerance-for-weapons policy without properly considering the circumstances

of his case.

In Colvin, a sixth grader was suspended for bringing a miniature Swiss

army knife key chain with a fingernail file, small pair of scissors, and

closed-end cuticle knife to school. The "weapon" carried the insignia of a

pharmaceutical company and was given to the student by his mother, a registered

nurse. It was found after it accidentally fell out of a hole in the student's

book bag. When confronted about the knife, the student handed it to his teacher

without incident and cooperated with school officials after its discovery. He

was expelled for one year.

The Colvin court reversed the expulsion, in part because the school

deferred to an "unwritten blanket policy of expulsion, absent reference to the

circumstances of the infraction."7 The

president of the school board had testified that the zero-tolerance policy

required the board to impose the same one-year expulsion penalty regardless of

the circumstances of the offense. In criticizing the school's decision, the

court wrote as follows:

Employing a blanket policy of expulsion, clearly a serious penalty,

precludes the use of independent consideration of relevant facts and

circumstances. Certainly, an offense may warrant expulsion, but such

punishment should only be handed down upon the Board's independent

determination that the facts and circumstances meet the requirements for

instituting such judgment. By casting too wide a net, school boards will

effectively snare the unwary student. The school board may choose not to

exercise its power of leniency. In doing so, however, it may not hide behind

the notion that the law prohibits leniency for there is no such law.

Individualized punishment by reference to all relevant facts and circumstances

regarding the offense and the offender is a hallmark of our criminal justice

system.8

But an Indiana appellate court reached a different result in Board of

School Trustees v Barnell.9 The

Barnell court reviewed the expulsion of yet another student who brought a

Swiss army knife to school. The student-conduct guidelines imposed automatic

expulsion for bringing a knife to school.

The student argued that because he did not threaten anyone with his

"relatively innocuous" knife, his expulsion was not necessary to maintain order

and was therefore arbitrary. He also argued that the decision to expel was an

arbitrary and capricious administrative act and that the district failed to

provide clear notice that students could be expelled for a first offense. The

court upheld the school board's rule as clearly spelling out the consequences

for such an offense and found that relying on the automatic expulsion rule was

not arbitrary or a violation of any rights of the student.10

Similarly, in Clinton Municipal Separate School District v Byrd,

11 two

high school students that defaced school property were suspended for a semester.

The board had adopted a policy providing that if a student defaced school

property, he or she "shall" be suspended or expelled.

The Mississippi Supreme Court held that a mandatory school disciplinary rule

is not unconstitutional simply because it is mandatory. The court pointed out

that a school rule couched in mandatory terms does not necessarily withdraw

discretion from a school board. Although affirming the discipline, the court

wrote as follows:

[t]hat a school rule may be worded in mandatory language does not deprive

school boards and their subordinates of the authority to administer the rule

with flexibility and leniency. The school board may choose not to exercise its

power of leniency. In doing so, however, it may not hide behind the notion

that the law prohibits leniency for there is no such law.12

In reaching its conclusion, the court relied upon several older federal court

decisions upholding school board decisions based on mandatory expulsion policies

for weapon or drug possession. As pointed out above in Colvin, at least

one other court has relied upon this same principle to overturn a school's

mandatory policy.

Finally, in Seal v Morgan,13 a high

school student brought a federal section 1983 action against his school for

expelling him after a friend's knife was found in his car. The student claimed

that he did not know about the knife. The school filed a motion for summary

judgment, but the trial judge essentially entered summary judgment against the

school on the issue of liability on the due process claim.

The appellate court held that suspending or expelling a student for weapons

possession under a zero-tolerance policy when the student did not knowingly

possess a weapon was not rationally related to a legitimate state interest,

reasoning that "[n]o 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."14

The appellate court reversed summary judgment in favor of the student to

allow for further discovery, but held that "[f]or the future...we expect that

our opinion today will clarify the contours of a student's right not to be

expelled for truly unknowing or unconscious possession of a forbidden

object."15

Illinois state law imposes a mandatory one-year expulsion for possession of a

weapon (as defined at 105 ILCS 5/10-22.6) at school, a school activity, or an

event "reasonably related" to school. However, the law specifically provides the

school board or superintendent with authority to alter that penalty if

warranted, building in the important element of discretionary decision-making in

school expulsion matters.

IV. Recommendations

In considering whether to adopt a zero-tolerance policy for misconduct,

schools should specify what they mean by "zero tolerance." Zero tolerance of

drugs and weapons is, and always has been, the policy of all public schools.

"Zero tolerance" could thus mean that all drug offenses will result in some

discipline and/or required drug treatment, clearly an acceptable approach. On

the other hand, it could mean that all drug offenses, regardless of type, will

result in a one-year expulsion.

Schools step onto thin ice when they diverge too dramatically from the

principle of making the punishment fit the crime. Fortunately, boards rarely

adopt policies that provide automatic penalties for specified offenses with no

exceptions for the circumstances of the case or the record or intent of the

student.

Given the increased scrutiny now being devoted to discipline policies and

procedures, schools should be wary of "one size fits all" discipline policies.

While a zero-tolerance policy for serious misconduct remains fully within the

district's authority, schools may want to ask the following questions before

adopting or enforcing any policy that mandates a preordained penalty,

particularly expulsion.

* Do they really need a written zero-tolerance policy that allows no

exceptions? Remember, schools can impose consistent, stiff penalties for serious

misconduct with clear notice to students without creating a zero-tolerance

policy that preordains a uniform penalty.

* Have they carefully determined whether the offense was actually committed?

Just because an offense is serious does not mean school authorities have a

lesser duty to demand sufficient and reliable evidence that it occurred. School

boards should try not to rely exclusively on hearsay information if

possible.

* Was the offense knowing and intentional? If the conduct is unintentional,

think about what the penalty is really designed to address, though schools need

not minimize safety issues or the need to make the seriousness of such conduct

clear to other students.

* Is the offense covered by the policy adequately defined - e.g., would

"weapon or look-alike" as defined in the school policy cover a bright-orange

squirt gun? Does the policy provide adequate notice of the penalty for the

offense, particularly if it is an automatic, fixed-term expulsion?

* Is there a reasonable relationship between the punishment and the age of

the student (e.g., weapon offense by a kindergartner) or nature of the offense

(e.g., possession of a plastic knife)?

* Does the policy allow any flexibility? Can the board or superintendent

alter the penalty if appropriate? Building in flexibility can make policies less

vulnerable to legal challenge.

* Is the policy consistent with applicable statutes or regulations?

* If the policy is deliberately designed to be zero tolerance, is it applied

in a nondiscriminatory manner - i.e., to both "good" and "bad" kids?

Consider these questions and the issues they raise, and remember that

imposing consistent penalties for similar offenses is generally the best

practice.

ABA Opposes Unyielding Zero-Tolerance Policies

The American Bar Association voted at its midyear meeting last February to

oppose zero-tolerance disciplinary policies that don't take into account the

circumstances and the students in question. The resolution, approved by the ABA

House of Delegates, reads as follows:

RESOLVED, that the American Bar Association supports the following principles

concerning school discipline:

1) schools should have strong policies against gun possession and be safe

places for students to learn and develop;

2) in cases involving alleged student misbehavior, school officials should

exercise sound discretion that is consistent with principles of due process and

considers the individual student and the particular circumstances of misconduct;

and

3) alternatives to expulsion or referral for prosecution should be developed

that will improve student behavior and school climate without making schools

dangerous; and

FURTHER RESOLVED, that the ABA opposes, in principle, "zero tolerance"

policies that have a discriminatory effect, or mandate either expulsion or

referral of students to juvenile or criminal court, without regard to the

circumstances or nature of the offense or the student's history.

Here's an excerpt from the ABA's zero-tolerance report: "Although few could

quarrel with a policy of zero tolerance towards children who misbehave - adults

who raise, teach or supervise children should react to misbehavior - their

responses should be appropriate to the age, history and circumstances of the

child as well as to the nature of the offense. Unfortunately, when it is

examined closely, 'zero tolerance' turns out to have very little to do with zero

tolerance, and everything to do with one-size-fits-all mandatory punishment."

The full report is online at

http://www.abanet.org/crimjust/juvjus/zerotolreport.html

See also "Zero Tolerance, Zero Sense" in the April 2000 ABA Journal, on

the Web at

http://www.abanet.org/journal/apr00/04FZERO.html

1. As reported in the January 25, 2000, Chicago Daily Southtown.

2. 78 F Supp 2d 812 (CD Ill 2000).

3. See also West v Derby Unified School Dist. No. 260, 206 F3d 1358, fn 3 (10th Cir 2000) (a student suspended for drawing a Confederate flag claimed that a school's policy against racial harassment or

intimidation violated his First Amendment free-speech rights, but the court

found that it was not a "zero-tolerance" policy because numerous factors aside

from the plain language of the policy went into the administrator's decision to

punish).

4. 105 ILCS 5/10-22.6.

5. 723 A2d 1073 (Pa Cmwlth 1999).

6. 114 F Supp 2d 504 (ND Miss 1999).

7. Colvin, 114 F Supp 2d at 512.

8. Id.

9. 678 NE2d 799 (Ind App 1997).

10. Id, 678 NE2d at 805. See also L.P.M. v School Bd. of

Seminole Co., 753 So2d 130 (Fla App 2000) (upholding suspension from

extracurricular activities pursuant to a zero-tolerance policy because

participation is a privilege, not a right).

11. 477 So2d 237 (Miss 1985).

12. Id, 477 So2d at 241; accord Mitchell v Board of

Trustees of Oxford Municipal Separate School District, 625 F2d 660 (5th Cir

1980) (court recognized that a mandatory disciplinary rule adopted by a school

board can be unconstitutional if there is no rational relationship between the

punishment and the offense; however, the rule is not unconstitutional simply

because it is mandatory).

13. 229 F3d 567 (6th Cir Tenn 2000).

14. Id, 229 F3d at 575.

15. Id, 229 F3d at 581.

Mr David J Fish

The Collins Law Firm, P.C.

1770 North Park Street

Suite 200

Naperville

60563

UNITED STATES 

Tel: [phone]

Fax: [phone]

URL: www.

(c) Mondaq Ltd, 2002 - Tel. [phone] - http://www.mondaq.com