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The zero-tolerance discipline plan and due process: elements of a model resolving conflicts between discipline and fairness.

The last two decades have seen public schools increasingly seeking effective means to manage both trivial and serious breaches of student behavior. (1) The means chosen from among the possibilities has typically been the zero-tolerance discipline concept. (2) The concept has become very attractive to overstressed and overworked school administrators because it attempts to take subjective decision-making out of the discipline equation. (3) Therein, however, lies the civil liberties question inherent in the application of the zero-tolerance concept: Can such a plan purporting to remove subjectivity from the attaching of guilt to punishment really be consistent with the constitutional guarantee of due process?

The headlines are typical. A student innocently brings something to school that a school administrator sees as fitting a particular definition in a rule, and the child is suspended for a prescribed period of time. (4) The average person hearing about this as a horror story on television typically thinks that the school official is either unreasonable or foolish. For example, Twin Peaks Charter School in Colorado expelled Shannon Coslet, a ten year-old student, from school because her mother put a small knife in Shannon's lunchbox so that she could slice an apple. (5) Shannon, cognizant about the school's policy against weapons, turned the knife over to her teacher. Her reward for unusual thoughtfulness for a child her age was the mandatory expulsion required by the school's zero-tolerance discipline policy. (6)

Edward Kelly, superintendent of the 51,000-student Prince William County School District in Virginia, says that zero-tolerance is primarily a response to the increasing litigiousness of American society, where parents are quick to defend their children and quick to sue the children's antagonists in the form of school officials representing the establishment. (7) His district's code of behavior, some twenty pages long, lists forty-seven types of misbehavior and twenty-six possible punishments. (8) The offenses range from bringing drugs to Sony Walkmans to school. (9) Other school administrators say that parents are very sensitive to differences in penalties, and that when parents take legal action, inconsistencies in punishment invariably become major issues. (10) This phenomenon is the genesis of the zero-tolerance movement: the fear of seeming to treat students differently. But doesn't this go to the essence of due process? Events are not always exactly alike, and an experienced school administrator is required to sort out the differences in a due process hearing. (11) In the desire to equalize results, officials ignore differing facts out of fear that they will have to defend their judgments against parental assault. However, as the Supreme Court stated in Epperson v. Arkansas, (12) "the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." School administrators are thus bound to comply.

The American Bar Association has responded to the criticisms of zero-tolerance, and to its legal history, by promulgating a resolution approved by the ABA House of Delegates:

"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 behavior, 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;

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." (13)

Parents have always been wary that school officials administer school discipline policies unfairly. To a great extent, the zero-tolerance concept is an adaptation to parental and media criticisms, but the reverse side of the question can also be seen in parental and media attitudes. In reality, are mandatory "one size fits all" policies as fair as they may seem at first glance?

While a school district certainly has the authority to create and enforce a zero-tolerance policy if it is appropriately written and administered, several issues should be reviewed before that policy mandates predetermined punishments: 1) Will a written zero-tolerance policy work if it allows no exceptions? 2) Will the policy require a meaningful determination of guilt that avoids hearsay information if possible? 3) Will it take into account scienter? 4) Will the policy carefully define offenses so that real differentiation may be made among incidents? 5) Will the relationship between the punishment and the age of the student or nature of the offense be reasonable? 6) Will the policy allow flexibility? (14)

I. ALABAMA'S ZERO-TOLERANCE POLICY

There has been relatively little case law in Alabama courts adjudicating conflicts between students' rights to due process and zero-tolerance punishment schemes. However, there has been considerable activity in other state and federal courts, which can give guidance to local school systems in Alabama wishing to respect the rights of students accused of breaking school rules, while at the same time creating and implementing effective, workable discipline policies that serve to create good, safe schools. These dual goals may be achieved by school systems that understand the source and scope of their power to prescribe rules and regulations lying in the following: state statutes, the implications of the Due Process Clause of the United States Constitution, the Due Process Clause of the Alabama Constitution of 1901, pertinent case law revealing due process problems common in zero-tolerance discipline plans, and the realities of discipline in public schools. A model zero-tolerance plan may be written and implemented which balances the constitutional rights of the public school student and also satisfies the needs of the local school system desiring to foster a safe and effective learning environment.

Alabama Code [section] 16-1-14 requires local school boards throughout the state of Alabama to adhere to certain rules and regulations.
   Any city, county, or other local public school board
   shall ... prescribe rules and regulations with respect
   to behavior and discipline of pupils enrolled in the
   schools ... and, in order to enforce such rules and
   regulations, may remove, isolate, or separate pupils
   who create disciplinary problems in any classroom
   or any other school activity [sic] and whose presence
   in the class may be detrimental to the best interest
   and welfare of the pupils of such class as a
   whole. Any rules and regulations adopted pursuant
   to this section shall be approved by the State Board
   of Education. Any such removal, isolation, or separation
   may not deprive such pupils of their full right
   to an equal and adequate education. (15)


The Legislature thus delegates to local school boards, limited by the approval of the State Board of Education, the authority to create and apply discipline plans in the schools. However, the statute also contains a second limitation, the implications of which are broad and important: "such removal, isolation, or separation may not deprive such pupils of their full right to an equal and adequate education." (16) Although the Alabama State Constitution of 1901 does not include a right to a public education, the language of Alabama Code [section] 16-1-14 creates a statutory provision. The statute limits the extent to which local school boards may remove students from educational opportunities, thus establishing a property interest in that educational opportunity. (17) While this limitation on the power of local school boards to remove students from schools is not a due process right in itself, it does create a property interest that local school boards must not take away without due process. Curiously, the following statutes are inconsistent with this statute and appear to limit [section] 16-1-14.

Alabama Code [section] 16-1-24.1 specifically enhances the power of the Alabama State Board of Education to require that local school boards adhere to policies promulgated by the State Board of Education that relate to illegal drugs, alcohol, or weapons:

Discipline plan; safe, drug-free schools.
   (a) The Legislature finds a compelling public interest
   in ensuring that schools are made safe and drugfree
   for all students and school employees. The
   Legislature finds the need for a comprehensive safe
   school and drug-free school policy to be adopted by
   the State Board of Education. This policy should
   establish minimum standards for classes of offenses
   and prescribe uniform minimum procedures and penalties
   for those who violate the policies. It is the
   intent of the Legislature that our schools remain
   safe and drug-free for all students and school employees.
   The State Board of Education shall adopt
   and all local boards of education shall uniformly enforce
   policies that protect all students and school
   employees. The State Board of Education shall require
   local school systems to modify their policies,
   practices or procedures so as to ensure a safe school
   environment free of illegal drugs, alcohol, or weapons.
   Any rules and regulations adopted by the
   State Board of Education pursuant to this section
   shall be exempt from Section 41-22-3(3). [The Alabama
   Administrative Procedure Act, which provides
   "a minimal procedural code for the operation
   of all state agencies when they take action affecting
   the rights and duties of the public."] These modifications
   shall include the formulation of a discipline
   plan setting forth policies, practices, and procedures
   dealing with students or other persons who bring illegal
   drugs, alcohol, or weapons on a school campus.
   The discipline plan shall also include uniform
   drug-free school policies with uniform penalties. (18)


Arguably, Alabama Code [section] 16-1-24. 1(a), cited in the preceding paragraph, amounts to the formulation of a statewide zero-tolerance policy relating to drugs that effectively limits procedural due process. In fact, this limiting of due process is the natural result of any discipline plan that codifies and mandates prescribed guilt and punishment schemes, without the possibility of resort to subjective human judgment. There are other Alabama Code provisions relating to school discipline which touch upon due process issues, such as Chapters 28 and 28A, and, interestingly, [section] 16-1-24.3(a), which clearly makes references to individual due process concerns relating to students charged with breaking rules pertaining to firearms on public school campuses. (19) However, it is [section] 16-1-14 and [section] 16-1-24.1 of the Alabama Code, which pertain most directly to zero-tolerance due process questions. (20)

There is no denying that these provisions of the Alabama State Legislature, and the requirements they place on the State Board of Education and local school boards, have as their goal safe and effective schools. Unfortunately, however, good intentions often mix truth and error and result in unfortunate outcomes. Such is the chemistry of the zero-tolerance concept as it appears here. A model policy would balance the compelling interest of the state in ensuring that public schools are safe and drug-free with clearly articulated constitutional guarantees of due process. The following legal analysis seeks to identify specific potential conflicts between the zero-tolerance discipline concept and due ,process. Furthermore, the analysis creates a model policy that would conform to the Legislature's intent in the statute while providing reasonable due process to students in public schools.

II. THE UNITED STATES ZERO-TOLERANCE POLICY

When the Gun-Free Schools Act (21) became law in 1994, every state in the United States responded with zero-tolerance compliance plans requiring one-year expulsions for students bringing weapons into schools as required by the Act. (22) In Alabama, the Legislature created [section] 16-1-24.3 of the Alabama Code as the state's particular umbrella zero-tolerance plan. (23) Both laws reveal the growing tendency of law-making bodies to trend in the direction of zero-tolerance plans as the best way to act on the public's desire for better security and safety in schools. Ninety-four percent of public school systems in the nation have initiated at least one policy creating zero-tolerance for some specific rule infraction. (24) Thus, as of 2004, over nine out of ten local school systems nationwide have decided to use the zero-tolerance discipline approach to some extent, and many of them have gone beyond the federal mandate of the Gun-Free Schools Act. (25)

While the movement toward zero-tolerance was actuated in the last decade by the occurrence of tragic, high-profile school shootings, a survey conducted in 2002 revealed that only one percent of public school principals polled were concerned about the possibility of their students' bringing weapons to school. (26) However, the public's general acceptance of the zero-tolerance approach to discipline problems is now a fact, and there is little questioning of it now, except on the relatively uncommon occasions when common sense goes so awry as to suspend a student for possessing a nail clipper or paper scissors or being stubborn or generally unruly. (27) The public has accepted the "necessity" of these policies because they believe them, rightly or wrongly, to be the best way to ensure the safety of children and adolescents in public schools. (28) These statutes periodically surprise school administrators when they apply harsh predetermined punishments to students whose intent is obviously innocuous. However, the statutes often fail to see that the missing element in the chemistry of zero-tolerance is a well-defined and measured application of due process, replicating plain common sense. (29)

It is a well-settled maxim in American jurisprudence that courts will not lightly interfere with matters relating to school discipline as long as the school's governing body "is rightfully exercising its inherent authority to discipline students." (30) This principle is most often applied wisely in circumstances in which well-meaning school administrators err on the side of good discipline and the consequences on the student are minimal. However, administrators' actions sometimes avoid common-sense solutions and have serious consequences on the student, as illustrated by the true story of thirteen-year-old Benjamin Ratner in the case of Ratner v. Loudoun County Schools. (31)

Ratner was an eighth-grader at Blue Ridge Middle School in Loudoun County, Virginia. (32) On October 8, 1999, one of Ratner's friends told him at school that she was thinking about slitting her wrists and that she had a knife with her in a notebook binder. (33) Ratner knew that she had attempted suicide before, so he took the binder containing the knife from her and put it into his locker. (34) Although he did not tell school officials about the knife, by lunchtime the assistant principal had heard that the student may have turned a knife over to Ratner. (35) When asked about the knife by the school's dean, Ratner admitted that it was in his locker, retrieved the knife, and turned it over to her. (36) The Dean, Fanny Kellogg, stated that she believed that Ratner had acted in the best interest of his friend and had posed no threat to anyone while he was in possession of the knife. (37) Subsequently, she suspended Ratner for ten days. (38) Two days later, Ratner was notified in writing that a recommendation had been made that would suspend him for the remainder of the school term ending on February 1, 2000. (39)

After a hearing, which affirmed Ratner's long-term suspension, Ratner's mother filed suit against the school system and four employees who had participated directly in the proceedings leading up to his suspension. (40) The district court dismissed the complaint for failure to state a claim, and the Fourth Circuit Court of Appeals affirmed the dismissal. (41) Ratner's four-month-long suspension for perhaps saving his friend's life would stand. In its decision, the Court of Appeals interestingly offered the proposition that the federal courts were not called upon to consider the wisdom of the zero-tolerance discipline policy; only whether Ratner's complaint presented sufficient facts to show that the application of the policy was constitutionally unfair. (42)

The implication in the court's ruling is that strict application of zero-tolerance is unwise. It removes judgment from the mix, and judgment applied to facts by a neutral, impartial party, empowered to make a sovereign decision is the essence of due process. (43)

III. ZERO-TOLERANCE UNDER DUE PROCESS

The Alabama State Legislature empowers the Alabama State Board of Education to delegate the inherent power to discipline students to local boards of education in cities and counties throughout Alabama. (44) The extent of that power is not the subject of this inquiry, but the relationship of this right is critical to understanding that a zero-tolerance policy must carry with it an appropriately defined measure of due process for the accused student.

The potential fatal flaw in the basic concept of the zero-tolerance discipline policy is the near-presumption of guilt founded upon a mere statement of fact. (45) This presumption of guilt imposes a heavy burden on the accused. For this reason, any zero-tolerance policy should mandate a minimal due process hearing set out in the policy itself.

Before 1967, states assumed a parens patriae authority over children that was almost without procedural safeguards. (46) In 1967, the United States Supreme Court ended that regime with its decision in In re Gault. (47) Justice Fortas wrote, "neither the Fourteenth Amendment nor the Bill of Rights is for adults alone." (48) In this landmark case, children became persons under the Fourteenth Amendment and acquired the shield of procedural due process protection. (49) Specific due process rights were required in any juvenile action that had the potential to result in confinement for the juvenile. (50)

According to Gault, the accused juvenile must be given advance notice of a hearing so as to have time for reasonable preparation; he or she must be given notice of the right to counsel; he or she must be given notice of the privilege against self-incrimination; and he or she must be given notice that any order for confinement must be based on sworn testimony subject to the scrutiny of cross-examination. (51)

Although Gault applies specifically to juvenile actions which may result in confinement, it opened a window into the state's less burdensome taking of liberty or property in the setting of the public school because any such taking requires at least procedural due process. (52)

In a public school setting, a suspension for a breach of a disciplinary rule for a short period of time, less than ten days, limits a student's procedural due process rights. (53) However, any statutory creation of a right to an education creates a property interest that schools must afford protection. Also, a liberty interest comes into play in that the accused student, no matter how minor or trivial the accusation, has an interest that his or her reputation be protected against damage without good cause. (54)

In Goss v. Lopez, the United States Supreme Court defined the parameters of a minor's guarantee of procedural due process in the setting of a public school suspension. A number of students were suspended for ten days as punishment for disciplinary rule violations stemming from widespread student demonstrations and minor acts of violence occurring in February of 1971. (55) The United States District Court held that the ten-day suspensions, dealt to the students under the applicable Ohio statute allowing such, constituted denial of due process and that the statute itself was unconstitutional. (56) On appeal, the Supreme Court affirmed the holding of the District Court. (57)

The Supreme Court's holding in Goss further advances and defines the line adumbrated in Gault: procedural due process applies to minors to the extent that property or liberty interests are at stake, and those interests are not limited to the possibility of confinement. Suspensions from public school lasting no more than ten days are state takings of liberty and property that require minimal due process notice and hearing elements. (58)

In Goss, the reasoning of the Supreme Court greatly clarifies the extent to which minors, under threat of suspension from a public school, are entitled to due process in relation to state statutes creating a property interest in education. (59) Alabama Code [section] 16-1-14 does the same. The appellants in Goss argued that the Due Process Clause cannot protect a student against suspension or expulsion because there is no constitutional right to a free public education. (60) However, their logic would not hold up in light of the fact that the Fourteenth Amendment forbids the depriving of any person's life, liberty, or property without due process of law. Citing Board of Regents of State Colleges v. Roth, (61) Justice White, writing the opinion of the Court, said, "Protected interests in property are 'normally not created by the Constitution. Rather, they are created and their dimensions are defined' by an independent source such as state statutes or rules entitling the citizen to certain benefits." (62) Thus, appellees possessed a property right to a free public education under the pertinent Ohio statute. Ohio Code [section] 3313.48 required local authorities to provide a free public education to all residents between the ages of five and twenty-one. (63) It also required compulsory attendance to all residents between five and 21 years old for a school year lasting a minimum of thirty-two weeks. (64) Accordingly, following Justice White's reasoning, Ohio, consciously creating a right adhering to persons in appellees' class, could not deny that right on grounds of misconduct without due process. (65) Thus, a statutory right leads to the required extension of a constitutional right: due process. (66)

Whenever a state requires compulsory school attendance among those persons within certain age ranges at public schools, students are endued with a property interest in that public entitlement. (67) Thus, when any constitutional right is at stake, whether a property interest as in Goss or a liberty interest as in Tinker v. Des Moines Indep. Cmty. Sch. Dist., due process is kindled because the property interest and the liberty interest become commingled. In Tinker, due process was not principally at issue; rather, the central issue was free speech in a public high school in opposition to the Vietnam War. (68) However, the fact that the school suspended students for violations of free speech meant that their property interest in a free public education, which they would be losing during the suspension, required due process. (69)

Furthermore, the holding of the Court in Goss also addresses the deprivation of liberty without due process. If a person's good name, reputation, honor, or integrity is at stake in an action of government, the minimal requirements of the Due Process Clause must be followed. (70)

In Wisconsin v. Constantineau, the police chief of Hartford, Wisconsin, acting upon a state statute, posted a notice in all liquor stores in the city that no sales or gifts might be made to appellee for a period of one year without notice or hearing. (71) Justice Douglas wrote that the posting of the name indicating that the appellee was incapable of drinking responsibly amounted to such a stigma or badge of disgrace that procedural due process requires notice and an opportunity to be heard. His reasoning behind this proposition focused on how the state was putting a person's good name, reputation, honor, or integrity at stake. (72)

In Roth, the Supreme Court upheld the District Court's ruling because the state made no charge against Roth that might seriously damage his standing and associations in the community. (73) Furthermore, the Court did not think the charge imposed a stigma or other disability that foreclosed his employment opportunities in terminating his employment as a non-tenured assistant professor at a state university. (74) The Court did not think he was deprived of a liberty protected by the Fourteenth Amendment. (75)

In Morrissey v. Brewer, the Court determined the nature of procedural due process required in a parole revocation action. (76) The Court summarized the required steps for due process in these situations as written notice and a hearing in which the accused may present documents and witnesses. (77) The parolee may question adverse witnesses, have a neutral hearing body, and receive a written statement explaining reasons for revocation. (78)

What is common to the cases cited and explained above is that state actions limiting a person's property or liberty interests may be undertaken when the required due process elements, notice and a meaningful hearing by some decision-making body, are in place. Implied in all the cases is the assumption that the decisionmaking body will conduct a meaningful hearing and decide the issue based upon the information presented during the hearing. In a due process hearing that takes place within the parameters of zero-tolerance, the ability of the decision-making body or school administrator is greatly limited, arguably too much so, by the predetermined penalty or the literal wording of the policy itself. A school administrator conducting a suspension hearing must have the flexibility to hear all facts and prescribe punishment within the context of the particular act being reviewed, as opposed to a fact scenario set by a zero-tolerance policy.

Because the suspensions at issue in Goss could affect the students' relationships with other students and teachers, and potentially interfere with later educational and employment opportunities, the Court found that Ohio's claim that it could suspend without extending due process cannot withstand constitutional scrutiny. (79) The import of the Supreme Court's holding in Goss is that state statutes may create rights to a free public education and, if they do, then those statutes have created property and liberty interests that the state may limit only within the boundaries set by the Due Process Clause: minimal notice and a hearing. (80) The notice and hearing required in the suspension of a student for a period of time less than ten days may be almost concurrent and also be quite brief, and in threatening circumstances, with danger to students, property, or the academic process, the notice and hearing may be held after removal from the school setting. (81)

IV. BALANCING DISCIPLINE AND DUE PROCESS

Alabama Code [section] 16-1-14 creates a statutory property and liberty right to "an equal and adequate education," that may not be limited by the state without due process. (82) Alabama Code [section] 16-1-24.1, which creates a kind of statewide zero-tolerance policy relating to the problems of drugs and weapons, contains language somewhat inconsistent with the preceding statute. In the spirit of the typical zero-tolerance policy, the statute specifically waives application of Alabama Code [section] 41-22-3(3), which sets out a minimal due process code for public actions, and states, "[t]he discipline plan shall [] include uniform drug-free school policies with uniform penalties." (83) It is the very essence of zero-tolerance that penalties be prescribed uniformly. Thus, according to this policy created by statute, a school administrator conducting a suspension hearing involving a student who has inadvertently brought a device to school, which may be subjectively defined as having the appearance of a weapon, is likely bound to administer the prescribed penalty without discretion. A school administrator conducting a suspension hearing involving a student who has brought an over-the-counter drug to school without relinquishing it to a school nurse, is likely to administer the prescribed penalty without discretion.

The application of the Supreme Court's holding in Goss to the requirements of Alabama Code [section] 16-1-14 and [section]16-1-28.1 is significant because it creates a property and liberty interest in a free public education, and therefore the due process elements set out in Goss are binding upon Alabama public suspension hearings. Justice White wrote in Goss:
   We stop short of construing the Due Process Clause
   to require, countrywide, that hearings in connection
   with short suspensions must afford the student the
   opportunity to secure counsel, to confront and
   cross-examine witnesses supporting the charge, or
   to call his own witnesses to verify his version of the
   incident.... On the other hand, requiring effective
   notice and informal hearing permitting the student
   to give his version of the events will provide a meaningful
   hedge against erroneous action. At least the
   disciplinarian will be alerted to the existence of disputes
   about facts and arguments about cause and effect.
   He may then determine himself to summon
   the accuser, permit cross-examination, and allow
   the student to present his own witnesses. In more
   difficult cases, he may permit counsel. In any
   event, his discretion will be more informed and we
   think the risk of error substantially reduced. (84)


Goss, itself, does not relate to a zero-tolerance policy application and predates the whole notion of such a concept. But the Goss holding assumes a due process hearing by the school administrator more robust than a cursory statement of facts not in dispute coupled with an application of a predetermined punishment even when the punishment is less than ten days suspension. In Cafeteria and Restaurant Workers v. McElroy, the United States Supreme Court addressed the concept of flexibility inherent in due process. (85) Writing the opinion of the Court, Justice Stewart said, "[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation. Due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances." (86)

In Dixon v. Alabama State Board of Education, the Fifth Circuit Court of Appeals analyzed the requirements of due process in an education setting and concluded that "the rudiments of an adversary proceeding may be preserved without encroaching upon the interests of the college." (87) Admittedly, there are considerable differences in Dixon from the typical suspension hearing for minor rule infractions in a public school, but the concept of due process itself is not different: Procedural due process requires that the decision-maker, in whatever hearing exists, be endowed with the authority to determine guilt and punishment.

Because the decision-maker in a school discipline hearing determines guilt and innocence, one must assume that this person, or sometimes a group of persons, must operate with a very specific, well-formulated set of rules that precludes careless misinterpretation or misunderstanding, especially when the infraction in question involves application of a zero-tolerance policy. That assumption is very often unwarranted. Unfortunately, statements in policy are often too vague and general to give clear enough guidance to a school administrator who is looking to the policy for clear decision-making elements. Admittedly, a school suspension or expulsion proceeding does not carry with it so grievous a punishment as to require the full constitutional protections of a criminal proceeding, but basic fairness demands at least evidence of guilt. (88)

The following scenario, which occurred in a school in Hawaii in 1999, illustrates the misdirection that sometimes happens when well-meaning school administrators use zero-tolerance discipline codes that demand harsh punishment but do not carefully define offenses. On November 10, 1999, Robert P. prepared to attend a senior luau at a country club in Honolulu. (89) While getting ready to go to the event, two of his friends who were visiting him at his home consumed alcohol although Robert himself did not drink. (90) Once the three arrived at the event, Robert's two friends were clearly under the influence and were questioned about drinking by school officials. (91) Robert was also questioned, but at the time, the assumption was that he had not been drinking. (92)

The following Monday, November 15, 1999, the three were called into the principal's office to be questioned about their being under the influence of alcohol at a school-sponsored event. At this point, Robert's friends implicated him in the drinking at his home even though he denied drinking. Later, evidence was presented to the school officials that they recanted their assertion that Robert was drinking. (93) After the questioning and an investigation, Robert was suspended for ninety-two days for consuming alcohol prior to attending a school event under the school's zero-tolerance policy. (94)

The rule that Robert P. was accused of violating, Act 90, 1996 Session Laws, H.B. No. 3862, Hawaii Revised Statutes [section] 302A-1134.5(a), reads as follows:
   Any student who is found to be in possession of a
   dangerous weapon, switchblade knife, intoxicating
   liquor, or illicit drugs while attending school, may
   be excluded from attending school for up to ninety-two
   school days, as determined by the principal and
   approved by the superintendent or other individuals
   designated pursuant to rules adopted by the board.
   In any case of exclusion from school, the due
   process procedures of the department adopted pursuant
   to chapter  (91, shall apply to any child who is
   alleged to be in possession of a dangerous weapon,
   switchblade knife, [or] intoxicating liquor.... (95)


As a result of Robert's suspension, his parents (James P. and Lucille P.) initiated an action seeking a temporary injunction preventing school officials from formalizing the suspension. (96) The United States District Court's analysis of the facts and the policy in question illustrates the flaws in this particular policy. These flaws may be found in many zero-tolerance policies because they were created relatively hurriedly to address the public's clamor for action in the wake of the Columbine tragedy, in particular.

One cannot be convicted and punished for an offense without evidence of guilt. (97) As the court points out, Act 90 in question here prohibits "possession of ... intoxicating liquor ... while attending school." (98) As the court said in its decision granting partial injunctive relief to the plaintiff, under the facts most favorable to the school defendants, Robert was guilty of intoxication at a school event at the most, and even then only if "possession" is defined as "present within the body." (99) Further, it explained that that definition of "possession" was unlikely within the context of legislative intent. (100)

Applying the facts of this case and the federal district court's rationale to the concept of due process, any due process policy must be very carefully stated to avoid inconsistent application of determination of guilt and punishment. Specifically, using the previous case as an example, "possession" must mean one thing, and it must always mean the same thing. It cannot mean mere presence in the body on one occasion and actual physical possession on another occasion. To cite the reasoning of the court in James P. v. Lemahieu,
   It is likely that a court would conclude that this statutory
   wording does not provide "fair notice" to
   students that they will be punished if they attend
   school functions after drinking elsewhere but not
   bring or consume liquor [sic] at the function. Also,
   it would encourage "arbitrary enforcement" to interpret
   the statute in this manner since it would allow
   the schools to interpret [emphasis added] statutes
   freely, regardless of the content and context of
   the rest of the provision. (101)


What is revealed here is that there is the possibility that zealous school administrators will, in the well-intended attempt to create a safe school environment, broaden through interpretation the application of a rule beyond the meaning of its plain meaning. When the zero-tolerance factor is added, it is very likely that a student like Robert P. will be adjudged guilty and punished for an offense which does not actually exist within statute or discipline policy. As the intent of zero-tolerance is here to eliminate alcohol from school activities, it becomes easy to go too far and assume that loose interpretation is acceptable. Because zero-tolerance removes discretion from the decision-making process in disciplinary hearings, strict adherence to plain meaning is required. It is questionable whether the average school disciplinarian is that precise in the give and take of handling a problem in the course of the typical school day.

In view of the fact that school systems across the United States have taken serious action to create and enforce zero-tolerance discipline schemes to curb violent acts in schools, the general assumption by the public is that they are actually working. Unfortunately, there is not much evidence to validate that notion. The mere fact that another Columbine has not occurred is not evidence that the new policies have worked. Realistically, a student suspended or expelled from school because of the application of a zero-tolerance rule infraction is no longer a discipline problem in that school. (102)

But how many six-year olds actually pose a legitimate violent problem in grade schools? Apparently, Delaware lawmakers thought there were too many. Six-year old Zachary Christie was given a 45-day sentence to his district's reform school for bringing a Cub Scout tool to school. (103) The tool is Zachary's favorite eating utensil, features a small fork, spoon, and knife. (104) Zachary's teacher spotted the tool in Zachary's hand after it fell out of his pocket. (105) At that point, the zero-tolerance policy immediately kicked in. The mandatory five-day suspension sent Zachary home with his mother, pending a hearing for a 45-day stay in the district's reform school. (106)

The hearing panel allowed Zachary to present character witnesses on his behalf, but the panel said their hands were tied and the 45-day penalty must be enforced. (107) The school district's zero-tolerance policy was spurred by a third grader's decision to bring a birthday cake, and a knife to cut it with, into the school to celebrate two years prior to Zachary's incident. (108) Clearly, the zero-tolerance policy failed to facilitate common sense in sentencing. Zachary's mother, not allowing her son to be sent to reform school, created a website and launched a campaign in hopes of having the school board re-think their decision. (109) In an unlikely circumstance, the school district backed down and overturned Zachary's sentence. (110) News of a school district sending a six-year old to reform school may spark immediate controversy within a community. But the basic opportunity for the student and his family to be heard in appeal is tantamount in protecting basic rights vested within substantive due process. Zachary's rights were vindicated by a school aiming to meet even the most minimal rights of the children they teach.

Whenever punishment for violation of a discipline rule involves suspension for more than ten days, an extended due process hearing must be conducted. (111) Everything in Goss rings clear with the Court's pronouncement that short suspensions may satisfy due process with brief executive notice and hearing. (112) They may even be concurrent under some circumstances, but that longer suspensions or expulsions "may require more formal procedures." (113)

A. Discipline and Due Process in the Higher Education Settings

The Eleventh Circuit defined "more formal procedures" through an in-depth analysis in Nash v. Auburn University. (114) Nash involves higher education rather than primary or secondary education. (115) There is no property interest in a college education, and the federal courts involved in Nash found no due process violations. (116) However, the Eleventh Circuit's reasoning as to the due process guaranteed to students is revealing. (117) Elementary and secondary public school students with property interests at stake would possess at least as much due process as the college students. Two students in Auburn University's School of Veterinary Medicine were suspended on charges of cheating on an examination. (118) The students brought legal action seeking injunctive relief and damages based on their claim that certain constitutional rights had been violated. Both the United States District Court and the United States Court of Appeals for the Eleventh Circuit ruled in favor of Auburn University, and in doing so they set out the procedural due process required for a long suspension or an expulsion. (119) The two students appeared before the Student Board of Ethical Relations on June 12, 1985, and were represented by counsel. (120)

The students' attorney was allowed to consult with the students and advise them during the hearing, but he was not allowed to participate actively. The students themselves were allowed to question the adverse witnesses indirectly through the presiding officer of the Board, but they objected to this limitation on their questioning of witnesses. (121) When this questioning ended, the students were given a recess and then allowed to present their defense, which included bringing in their own witnesses. (122) Some further questioning was initiated by the Board. (123) After deliberating in private, the result of the hearing was announced. (124) The Board found the two students guilty of academic dishonesty and affirmed their suspension for one year. (125)

Less than two years prior to this incident, an undergraduate student at Auburn was caught cheating and was suspended. (126) Later, his suspension was reduced by the president of the university, and the president was criticized in public by the local chapter of the Association of University Professors and the Student Senate. (127) Some members of the Auburn University Honor Committee resigned in protest. (128) This prior event had no concrete connection to the Nash suspension, but reference to it is made in the case materials in order to explain the thinking behind the students' appeals. (129) Both students appealed to a faculty committee and to the president of the university. The suspensions were upheld, and the students initiated legal action. (130)

The central issue in question in Nash, of course, is that of the appropriate level of procedural due process necessary to protect the students' constitutional interests. Three factors are to be analyzed when determining the adequacy of due process procedures: first, the nature of the private interest involved; second, the risk of depriving that interest through the procedures used and the value other procedural safeguards not used; and third, the government's interest and the burden of additional procedural safeguards. (131)

The two suspended students argued several due process-related issues in their action against Auburn University. The issue in this case, which potentially touches on an area connecting to zero-tolerance, is that of the impact of the existing cheating controversy at the University. Both the District Court and the Eleventh Circuit found no prejudice on the part of the board which suspended the students, but an interesting comment is made in the discussion of this controversy: "Any alleged prejudice on the part of the board must be evident from the record and cannot be based in speculation or inference." (132) The two students in Nash were unable to show prejudice in the anti-cheating environment at Auburn University. But what about students suspended for weapon-related or drug-related offenses under a zero-tolerance policy generated by public hysteria in reaction to the Columbine tragedy? There is more than a hint in the Nash reasoning that if the students could have shown the existence of a prejudicial environment there might have been an effect on the court's acceptance that due process requirements were met. This is the very effect that casts a shadow onto due process because of the influence of the zero-tolerance principle: safety and discipline is so important that almost any administrative disciplinary act is acceptable so long as its goal is rationally connected to policy.

B. Discipline Where Intent Lacks

Perhaps the most difficult kind of due process lapse associated with zero-tolerance occurs when a student is suspended or expelled for violating a disciplinary rule when all the evidence available shows that he or she was unaware of facts or events implicating him in a violation. Generally, scienter is a required element in a criminal act or wrongdoing. A term retained from ancient Latin pleading, scienter refers to the fact that holding one accountable for his actions requires that one must act knowingly or understandingly in the matter in question. (133)

Many, if not most, of the horror stories spawned by applications of zero-tolerance disciplinary rules involve questions of scienter. That is not to say that failure to acquaint oneself with pertinent rules forgives the offense. Rather, it is to say that the student's ignorance of facts attaching guilt forgives the offense. Because zero-tolerance typically forbids the reviewer to consider the totality of circumstances related to a violation, the reviewer may be prevented from looking at the important element of scienter. Let us consider the case of Dustin Seal, a student at Powell High School in Knox County, Tennessee, in 1996.

Seal brought a [section] 1983 (134) action against the system superintendent and the county board of education seeking compensation for his expulsion from high school after a friend's knife was discovered in Seal's car. (135) The defendants sought summary judgment on the due process liability claim but were denied by the United States District Court. (136) They appealed, but the denial of summary judgment was upheld by the Sixth Circuit Court of Appeals. (137)

In the fall of 1996, Dustin Seal was a junior at Powell High School. On the night of November 1, he drove his girlfriend and a male friend named Ray Pritchert to the high school for a football game. When Seal and Pritchert, both band members, entered the building, the band director, Gregory Roach, asked the two if they had been drinking. Pritchert denied that they had been drinking. Shortly thereafter, Roach called them to his office, where the vice-principal, Charles Mashburn, stated that other students had seen them drinking. He searched Seal's and Pritchert's coats and instrument cases and found nothing. Then he searched Seal's car, where he found Pritchert's knife in the glove compartment, two cigarettes, and a bottle of antibiotic pills for which Seal had a prescription. (138) Mashburn then had Seal write a statement of the reason that the knife was in the glove compartment. After a hearing on November 6 with the school principal, Seal was suspended for the possession of the knife on school property, pending expulsion. An appeal hearing was conducted on November 14, 1996. Witnesses called by Seal testified that, as far as they knew, Seal did not know that the knife had been placed in the glove compartment. (139) The principal's action was upheld.

Seal then appealed to the County Board of Education. At this hearing, Seal testified that he had no knowledge that the knife was in his car while the car was on school property, but the Board voted unanimously to uphold the expulsion. (140) A statement made by one of the school board members during this hearing is revealing as to the zero-tolerance approach to disciplinary violations, especially weapons violations: "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." (141)

The school officials' actions taken in the expulsion proceedings were founded on Tennessee Code Ann. [section] 49-6-4012(a), which delegates to local school boards the authority to make student disciplinary rules and set punishments for violations of those rules. Significantly, prior to the 1996 school year, the legislature directed those local school systems to create and file with the state commissioner of education written policies to "impose swift, certain and severe disciplinary sanctions on any student [who] brings a ... dangerous weapon" onto school property or "[p]ossesses a dangerous weapon" on school property. (142) The legislature also encouraged local school systems to integrate a zero-tolerance stance against weapons violations into their policies. (143)

Thus, the facts in Seal present the typical and well-intended attempt by state and local officials to create safe and productive environments in public schools. Unfortunately, however, a byproduct of this undertaking has been a diminution of procedural due process rights guaranteed to students by the Fourteenth Amendment because of the state requirement that students within particular age limits (until the age of eighteen in Tennessee) attend school. (144)

Most important about the Seal case is that the Sixth Circuit Court of Appeals finds a question of substantive due process at issue in the sequence of events. In fact, Seal did not argue that the procedural process employed by the county board of education was unfair in expelling him. Instead, he argued that the decision itself

was flawed because of the facts revealed in the hearings process. (145) The United States Supreme Court has been very reluctant and continues to be reluctant to overextend substantive due process protection. (146) In Goss, the Court emphasized the local nature of public education and warned that judicial intervention in matters of discipline warrants restraint. (147)

V. STATE'S INTEREST IN ZERO-TOLERANCE

Government actions not affecting a fundamental right or a liberty interest not applying to a suspect class will be upheld by reviewing courts if those actions are rationally related to a legitimate state interest. (148) A substantive due process claim may be successful only when there is no rational relationship between the rule violation and the punishment received. (149) In Seal, the Sixth Circuit Court of Appeals found that suspension or expulsion for a weapons possession violation when that student did not knowingly possess a weapon was not rationally related to a legitimate state interest. (150) In other words, scienter must exist as an element in the offense. The Knox County Board of Education argued that its zero-tolerance policy did not require scienter. (151) The Court of Appeals rejected this argument out of hand and even used the term "irrational" in describing the decision of the Board. (152)

Much attention has been given to Seal. Seal is illustrative of what is dangerous about the implementation of zero-tolerance discipline policies that require reviewing officials to apply rules mindlessly. Without looking at the totality of circumstances surrounding a suspension or expulsion, sending a message to the public becomes more important than the specific facts relating to the offense in question and the welfare of the student in question. Zero-tolerance is most often suspected as violating procedural due process, but in Seal a court found a substantive due process violation in the refusal of the reviewing body, the local board of education, to consider rational facts. (153)

The federal courts, and the United States Supreme Court in particular, have been very reluctant to question local control of disciplinary matters. (154) However, the salient cases which adumbrate minimal due process requirements, particularly Goss v. Lopez, contain implications that the zero-tolerance model generally used by local school systems is flawed because it does not allow that the reviewing body be able to look at the totality of circumstances in its review. (155) Comparisons between local school board zero-tolerance policies and zero-tolerance statutes, such as Alabama's [section] 16-1-24.3, reveal a lack of specific guidance for school administrators carrying out disciplinary duties under the stress of time and circumstances.

VI. CONCLUSION

What should be the message, then, to a local school principal or a local board of education concerning the use of the zero-tolerance disciplinary concept? Perhaps that message should say that the notion of zero-tolerance in itself is viable and worthy as a general principle in opposing violence and drugs in public schools. But that one thing it should not mean is the suppression of due process. Does an elementary school student whose mother puts a paring knife in a lunchbox without the child's knowledge reasonably deserve to be expelled for a weapons violation? Does a junior high school student who wears a t-shirt emblazoned with some emblem which might be defined as a weapon or a drug rationally deserve to be suspended or expelled? Reason would seem to say no.

The primary objective of this analysis has been to arrive at an understanding of what the characteristics of a model zero-tolerance policy would be. It would provide full and appropriate due process protections and propose specific improvements to the pertinent Alabama statutes which guide and direct local authorities in the formulation and implementation of discipline policies, and, in particular zero-tolerance policies.

Notably, Alabama Code [section] 16-1-14, which delegates to local school authorities the power to create and enforce disciplinary rules, is too vague and remiss when it states, "[a]ny rules and regulations adopted pursuant to this section shall be approved by the State Board of Education." More guidance should be given to local authorities in the statute as to what might constitute appropriate notice and hearing under the different scenarios of suspensions. This will align their policies with the salient case law in the area of zero-tolerance discipline.

With the inherent due process weaknesses in the zero-tolerance discipline concept identified, the following points set out those characteristics which should be present in local school system policies applying to short suspensions (ten days or less):

1. The use of suspension and expulsion as punishment for breaking school rules should be limited to activities associated with school functions.

2. Short-term suspensions for ten days or less require notice and hearing.

3. An investigation must be carried out to determine the facts.

4. The student must be permitted to state his or her side of the matter.

5. If the student claims innocence, evidence must be divulged to allow the student to present his or her version of the facts.

6. The student and parents or guardian must be informed of the violation and the expected punishment in a hearing in which disagreement may be aired.

7. The student must be given a written statement of the charge and the evidence, the punishment imposed, the right to informal review or appeal that the particular school district has decided to implement, and requirements for reinstatement.

8. Numerous short-term suspensions should never take the place of long-term suspensions when the circumstances warrant.

9. The reviewing school official should have plenary power to decide guilt and punishment by the standard of totality of circumstances.

Some authorities might argue that, in view of the case law in existence, all of this is not necessary in the context of the short suspension, but the objective here is not to decide how little due process may be provided to the student. Instead, it is to decide what level of due process should be provided to create the healthiest environment possible in administering school disciplinary policy.

When a student has broken a rule that calls for suspension longer than ten days or expulsion, more formal procedures are required:

1. Suspension and expulsion proceedings should be directly related to school activities, whether on-campus or off-campus.

2. Notice of the violation should be formalized in writing, and the hearing process should be explained in the notice.

3. An investigation must be carried out to determine the facts, and the results of the investigation should be memorialized in detail.

4. At the initial hearing, the student must be allowed to present his or her version of the facts, may be represented by counsel, and may present witnesses or question school witnesses. The reviewing official must present his or her decision in writing along with the basic reasons for that decision.

5. The actual decision-making body should be the local school authority.

6. At the hearing conducted by the local school authority, the accused student may be represented by counsel and may present and question witnesses. Hearsay evidence may be allowed by the school authority to prove or disprove the allegation.

7. The decision of the reviewing body must be formalized in writing and must include the essential rationale for the decision and requirements for reinstatement.

8. The reviewing body should have plenary power and should render a decision based on the totality of circumstances.

Political considerations are at the heart of zero-tolerance discipline policies, and it is one thing to propose modifications in statutes affecting local schools and the children who attend them and another to convince a state legislature to implement those modifications. The pertinent statutes in Alabama Code, [section][section] 16-114, 16-1-24.1, and 16-1-24.3(a), should be revised to include specific due process standards of review and to require that the Alabama State Board of Education review existing local school system policies periodically and mandate revisions where due process considerations are not included in the policies themselves.

Local school administrators should be trained to administer local system policies. In particular, they should be trained to avoid escalation of charges and penalties. That is, they should understand how to be careful not to allow a laudable and general desire to create a safe school environment to inflate clearly trivial and non-threatening situations into major events by failing to use common sense by looking at the totality of circumstances.

In proposing a common-sense relaxation of the rigorous zero-tolerance approach to school discipline, it seems necessary to rebut the obvious counter-argument that reinforcing due process protection presents a weakening of the post-Columbine resolution to deal with school violence. Nothing could be further from the truth. Simply put there are other school discipline models that appear to work on foundational principles beyond punishment alone. In particular, there is some evidence that the concept of restorative justice applied to the public school setting may be a viable alternative to zero-tolerance.

The theory of restorative justice incorporates victims and offenders and community members and institutions into a conflict-resolution setting. It attempts to move beyond offender-centered retribution into discovery of the cause and effect relationship in misbehavior with the goal of actual rehabilitation. (156) First implemented in American schools in the 1970s, the idea behind restorative justice is that offenders are more likely to achieve some measure of rehabilitation if they take some ownership for their actions. (157) Thus, a restorative justice model deemphasizes punishment, although it does not preclude punishment. Instead, it places primary focus on crime prevention, victim's interests, and community [school] empowerment and solidarity. (158)

Perhaps the most attractive innovation formulated by the restorative justice model is the community reparative board, which could be termed the school honor court for education purposes. In this model, students could participate in minor disciplinary matters under the leadership of a dynamic administrative official who is unafraid to work with adolescents in a collaborative effort. (159)

This concept sounds mild and idealistic when contrasted with the ironclad penalties of zero-tolerance, but evidence exists that students respond better to positive intervention in discipline matters rather than mere reactionary punishment. (160) Illustrative of positive intervention is Denver's School Mediation Center. Denver's approach uses structured consequences for serious offenses which are also addressed within the setting of mediation to create changed behavior, restitution, and community service. (161)

Teachers and principals are required to maintain discipline for instructional purposes and safety reasons during the course of every school day. Most of them learn quickly that students who believe that they are being fairly treated, even when they commit disciplinary violations, are unlikely to present chronic discipline problems. That is all that due process requires in the school environment: fairness. In itself, zero-tolerance has been just another discipline model that has flaws that can be repaired. School systems that wish to continue using it should review, revise, and train in order to ensure that the full measure of constitutional due process is applied in every disciplinary action.

(1) Brooke Grona, School Discipline." What Process is Due? What Process is Deserved?, 27 AM. J. CRIM. L. 233, 235-36 (2000).

(2) Id. at 238.

(3) Id.

(4) Kim Fries & Todd A. DeMitchell, Zero Tolerance and the Paradox of Fairness." Viewpoints From the Classroom, 36 J.L. & EDUC. 211, 212 (2007) (citing the United States Department of Education's definition of zero tolerance as a "policy that mandates predetermined and severe consequences or punishment for specific offenses") [hereinafter "Zero Tolerance and the Paradox of Fairness"].

(5) Dennis Cauchon, Zero-Tolerance Policies Lack Flexibility, USA TODAY, April 13, 1999, at A1.

(6) Id.

(7) Id.

(8) Id.

(9) Id.

(10) Id.

(11) See Zero Tolerance and the Paradox of Fairness, supra note 4, at 217. Teachers are usually on the frontlines when it comes to apprehending students with "weapons". During an interview with one teacher though, the teacher acknowledged that a "weapon" could almost be anything, including a paper clip. And, although the individual teacher perceives an item, such as nail clippers to not be considered a weapon, a school administrator, having the final say, may think it is.

(12) 393 U.S. 97, 104 (1968) (citing Shelton v. Tucker, 364 U.S. 479, 487 (1960)).

(13) Young Lawyers Div. Rep. to H.D., Criminal Justice Section, Section of Family Law, Steering Committee on the Unmet Legal Needs of Children, Commission on Mental and Physical Disability, 2000 A.B.A. (Recommendation), available at http://www.abanet.org/crimjust/juvjus/zerotolres.html (last visited Apr. 22, 2010). See also Scott F. Uhler & David J. Fish, Zero-Tolerance Discipline in Illinois Public Schools, ILL. B.J., available at http://www.fishlawfirm.com/files/article03.pdf (last visited Apr. 22, 2010) [hereinafter "Zero-Tolerance Discipline in Illinois Public Schools"].

(14) Zero-Tolerance Discipline in Illinois Public Schools, supra note 13.

(15) ALA. CODE [section] 16-1-14 (1975).

(16) Id.

(17) Id.

(18) ALA. CODE [section] 16-1-24.1(a) (1975) (emphasis added).

(19) See ALA. CODE [section] 16-1-24.3(a) (1975).

(20) See generally ALA. CODE [section] [section]16-1-14, 16-1-24.1 (1975).

(21) 20 U.S.C. [section] 8921 et seq. (2000) (repealed by Pub. L. No. 107-110, Title X, [section]1011(5)(c), 115 Stat. 1986 (2002)).

(22) Grona, supra note 1, at 235.

(23) ALA. CODE [section] 16-1-24.3 (1975).

(24) Grona, supra note 1, at 235-36, 238-40.

(25) Id.

(26) Christina L. Anderson, Double Jeopardy: The Modern Dilemma[or Juvenile Justice, 152 U. PA. L. REV. 1181, 1188 (2004) [hereinafter "Anderson"].

(27) Id. at 1187.

(28) Zero Tolerance and the Paradox o[Fairness, supra note 4, at 220-21. While propos ing a made-up scenario of a child and a knife, the authors discovered that some teachers, although finding small knifes with relatively young and innocent children, failed to report the incident to school administrators. The teachers believed common sense should prevail over possible suspension.

(29) Id. at 214 (explaining that some commentators argue that zero tolerance policies have eroded the fundamental principle of "innocent until proven guilty" with the inflexibleness of zero tolerance policies).

(30) E. H. Schopler, Annotation, Right of Student to Hearing on Charges Before Suspension or Expulsion from Educational Institution, 58 A.L.R.2d 906 (1958).

(31) 16 Fed. Appx. 140 (4th Cir. 2001).

(32) Id. at 141.

(33) Id.

(34) Id.

(35) Id.

(36) Id.

(37) Ratner, 16 Fed. Appx. at 141.

(38) Id.

(39) Id. at 141-42.

(40) Id. at 142.

(41) Id

(42) Id.

(43) Ratner, 16 Fed. Appx. at 143.

(44) ALA. CODE [section] 16-1-14 (1975).

(45) Warren A. Seavey, Dismissal of Students: "Due Process." 70 HARV. L. REV. 1406 (1957).

(46) Kent v. U.S., 383 U.S. 541, 555 (1966).

(47) In re Gault, 387 U.S. 1, 13 (1967).

(48) Id.

(49) Id.

(50) Id. at 33.

(51) Id. at 34.

(52) Id. at 30-31.

(53) C.B. ex rel Breeding v. Driscoll, 82 F.3d 383, 386 (11th Cir. 1996).

(54) Goss v. Lopez, 419 U.S. 565, 575 (1975).

(55) Id. at 570-71.

(56) Id. at 571 (referencing OHIO REV. CODE [section] 3313.66 (1972)).

(57) Id. at 584.

(58) Id. at 573-75.

(59) See id. at 581 (holding that "[s]tudents facing temporary suspension have interests qualifying for protection of the Due Process Clause, and due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story").

(60) Goss, 419 U.S. at 572.

(61) 408 U.S. 564 (1972).

(62) Goss, 419 U.S. at 572-73.

(63) Id. at 573.

(64) Id.

(65) Id.

(66) Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,506 (1969).

(67) Goss, 419 U.S. at 573.

(68) Tinker, 393 U.S. at 504.

(69) Id. at 506.

(70) Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573 (1972); Morrissey v. Brewer, 408 U.S. 471, 485 (1972); Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).

(71) Constantineau, 400 U.S. at 435.

(72) Id. at 437.

(73) Roth, 408 U.S. at 567.

(74) Id. at 573.

(75) Id. at 579.

(76) Morrissey, 408 U.S. at 481.

(77) Id. at 487-89.

(78) Id. at 489.

(79) Goss, 419 U.S. at 574-75.

(80) Id. at 576-79.

(81) Id. at 583.

(82) ALA. CODE [section] 16-1-24.1 (1975).

(83) Id. (emphasis added).

(84) Goss, 419 U.S. at 583-84.

(85) McElroy, 367 U.S. 886 (1961).

(86) Id. at 895 (internal citations and quotations omitted).

(87) 294 F.2d 150, 159 (5th Cir. 1961).

(88) Goss, 419 U.S. at 584.

(89) James P. v. Lemahieu, 84 F. Supp. 2d 1113, 1115 (D. Haw. 2000).

(90) Id.

(91) Id. at 1116.

(92) Id.

(93) Id.

(94) Id. at 1116.

(95) HAW REV. STAT. [section] 302A-1134.5(a)(2010).

(96) Lemahieu, 84 F. Supp. 2d at 1118-1123.

(97) Thompson v. City of Louisville, 362 U.S. 199, 206 (1960).

(98) Lemahieu, 84 F. Supp. 2d at 1116.

(99) Id. at 1121.

(100) Id. at 1120.

(101) Id. at 1121.

(102) Alexander Volokh, A Brief Guide to School Violence Prevention, 2 J.L. FAM. STUD. 99, 100 (2000).

(103) Ian Urbina, It's A Fork, It's A Spoon, It's A ... Weapon?, NEW YORK TIMES, Oct. 12, 2009, Al [hereinafter "Urbina"].

(104) Id.

(105) Id.

(106) Id.

(107) Id.

(108) Id.

(109) Urbina, supra note 103.

(110) Boy Suspended Over Utensil Gets Reprieve, Oct. 14, 2009, http :/ /today.msnbc.msn.com/id/33289924/ns/today-today_people/.

(111) See Goss, 419 U.S. 565 (1975); Tate v. Bd. of Educ., 453 F.2d 975 (8th Cir. 1972); Nash v. Auburn Univ., 812 F.2d 655 (11th Cir. 1987); Vail v. Bd. of Educ., 354 F. Supp. 592 (D.N.H. 1973).

(112) Goss, 419 U.S. at 584.

(113) Id.

(114) 812 F.2d at 660.

(115) Id. at 656.

(116) Id. at 660, 668.

(117) Id.

(118) Id. at 657.

(119) Id. at 660.

(120) Nash, 812 F.2d at 657.

(121) Id. at 664.

(122) Id. at 658.

(123) Id.

(124) Id.

(125) Id. at 659.

(126) Nash, 812 F.2d at 658.

(127) Id.

(128) Id. at 658.

(129) Id. at 659.

(130) Id.

(131) Id. at 660.

(132) Nash, at 665.

(133) BLACK'S LAW DICTIONARY 1373 (8th ed. 2004).

(134) 42 U.S.C. [section] 1983 (2006).

(135) Seal v. Morgan, 229 F.3d 567, 573 (6th Cir. 2000).

(136) Id. at 567.

(137) Id.

(138) Id. at 571.

(139) Id. at 572.

(140) Id. at 572-73.

(141) Seal, 229 F.3d at 572.

(142) TENN. CODE ANN. [section] 49-6-4216(a)(2) (1977).

(143) TENN. CODE ANN. [section] 49-6-4216(b).

(144) See generally Goss, 419 U.S. 565.

(145) Seal, 229 F.3d at 574.

(146) Washington v. Glucksberg, 521 U.S. 702, 721 (1997).

(147) Goss, 419 U.S. at 578.

(148) Vacco v. Quill, 521 U.S. 793 (1997).

(149) Rosa R. v. Connelly, 889 F.2d 435,439 (2d Cir. 1989).

(150) Seal, 229 F.3d at 575.

(151) Id. at 576.

(152) Id. at 579.

(153) Id, at 579.

(154) Goss, 419 U.S. at 583.

(155) Cherry Henault, Zero Tolerance in Schools, 30 J.L. & EDUC. 547, 552 (2001).

(156) Anderson, supra note 26, at 1201.

(157) Id, at 1203.

(158) Id. at 1204.

(159) ld. at 1204-05.

(160) Id. at 1201.

(161) Id. at 1211.

John J. Garman, Professor of Law, Faulkner University, Thomas Goode Jones School of Law. B.A., Lipscomb University; J.D., Vanderbilt University; LL.M., Universite de Droit, d'Economie et des Sciences d'Aix-Marseille.

Ray Walker, Instructor of English, Southern Union State Community College. B.A., M.A., Jacksonville State University; J.D., Faulkner University, Thomas Goode Jones School of Law.
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Author:Garman, John J.; Walker, Ray
Publication:Faulkner Law Review
Date:Mar 22, 2010
Words:11215
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