Zero Tolerance: Balancing an Uncertain Expulsion Policy 1.1 2007/02/12 11:14:28.881 US/Central 2007/02/27 13:03:08.004 US/Central Robert S. McCord rmccord@unlv.nevada.edu James L. Hager jim.hager@unlv.edu T. C. Mattocks cmattocks@bellingham.k12.ma.us National Council of Professors National Council of Professors of Educational Administration stdyxn12@shsu.edu discipline expulsion law zero tolerance The article tests the common understanding of zero tolerance expulsion policies and in doing so balances the manner in which the policy is being implemented with the role of the Federal Courts as the arbitrator of disputes arising out of the use of the policy as a deterrent. The authors identify the important issues, review recent legal challenges and offer analysis of the implications for school administrators. This module has been peer-reviewed, accepted, and sanctioned by the National Council of the Professors of Educational Administration (NCPEA) as a scholarly contribution to the knowledge base in educational administration.The American Bar Association (ABA) recognizes that school officials need to address true disciplinary problems and that they face pragmatic concerns in trying to do so while facing many other challenges in the public school setting. We believe that the proposed policy, focusing on individual responses to students, will be more beneficial than burdensome to school administrators. It is easy to imagine school discipline policies that are grounded in common sense and that are sensitive to student safety and the educational needs of all students. Such policies are the kind that most parents would want if their own children were being disciplined. Unfortunately, most current policies eliminate the common sense that comes with discretion and, at great cost to society and to children and families, do little to improve school safety. (American Bar Association, 2006)Zero tolerance expulsion policies in schools are seen by some as an extreme yet understandable policy response to the post-Columbine realities of the decade of the 90s. Yet, for all of its clear intent, have zero tolerance expulsion policies resulted in common agreed upon application and outcome or have they been morphed into an unpleasant or even offensive outcome? Rather than arguing this matter on the basis of ethics as was so eloquently addressed by Gorman and Pauken (2003), it is our objective to approach the topic from the policy implementation perspective where the efficacy of zero tolerance expulsion policies are viewed through the lens of recent federal court action. In considering zero tolerance expulsion policies cases, the courts have been challenged to strike a balance between the state’s interest to maintain a safe educational environment against the interests of children who the Tinker Court (393 U.S. 503) clearly indicated are subject to the authority of school officials (p. 507) while admonishing school authorities that they do not have absolute authority over students (p. 508). To further make their point, the Tinker Court reminded us that neither teachers nor students shed their constitutional rights to freedom of speech or expression at the schoolhouse gate (p. 506). The balancing of state interests against individual rights has proved to be a challenging endeavor. Fowler (2004) reminds us that the implementation stage of the policy process is reliant on formal implementers who assume the responsibility for directing the implementation of the policy by virtue of their official position. In the case of zero tolerance expulsion policies, it means that the superintendent and central office administrators assume that role. Accordingly, principals and teachers assume the intermediary role charged with the day-to-day implementation of the policy. To that end, the formal implementers must continually promote the will and capacity of the intermediaries to successfully implement zero tolerance expulsion policies, understanding that forces against successful implementation come from many directions. It is the intent of this paper to investigate one of those forces affecting the successful implementation of zero tolerance expulsion policies – federal district courts. By studying the opposing arguments for zero tolerance expulsion policies at the federal court level, one is able to chart the course of implementation, or lack thereof, of these policies. As Russo (2004) instructs, the focus of much federal court scrutiny is based upon claims of deprivation of rights secured by the Constitution (42 U.S.C. §1983), where rules, policies, and the authority of those formally charged with implementation are tested. This paper is separated into three sections: introduction, origins and discourse of zero tolerance expulsion policies, and implications for practice of recent federal court action. What this paper leaves for future investigation is the disparate impact of zero tolerance expulsion policies on the disabled and underserved student population. Origins and Discourse on Zero Tolerance Expulsion Policy DeVoe, Noonan, Snyder and Baum (2005) in Indicators of School Crime and Safety: 2005 have documented the following: Students were more likely to be victims of serious violence or homicide away from school. In 2003, students ages 12-18 reported being victims of serious violence at a rate of 12 crimes per 1,000 students away from school and 6 crimes per 1,000 students at school. Similarly, in each school year from July 1, 1992, through June 30, 2002, youth ages 5-19 were over 70 times more likely to be murdered away from school than at school. For several measures, data show trends in school victimization decreasing over the last decade. The nonfatal victim rate for students ages 12-18 at school generally declined between 1992 and 2003; this was true for total crime rate and for thefts, violent crimes, and serious violent crimes. However, when looking at the most recent years, no differences were detected between 2002 and 2003 in the rates of total victimization, violent victimization, or theft at school. For fatal victimization, between July 1, 1992, and June 30, 2002, the number of homicides of school-age youth at school declined as well. Specifically, between the 1998-99 and 1999-2000 school years, the number of homicides of school-age youth at school declined from 33 to 14 homicides. Since then, there have been between 12 and 17 homicides in each school year through 2001-02 (p. iv). In reflecting on the downward trend in violent crime in schools, Pedersen (2004) suggests that zero tolerance expulsion policies may share some of the credit; however, he also suggests that fear of victimization by students at school is still prevalent. The unfortunate paradox between zero tolerance expulsion policies and the well-founded role of schools as an institution charged with teaching tolerance is troubling (Richards, 2004). The rejection by the Warren court in Brown v. Board of Education of Topeka (347 U. S. 486, 74 S.Ct. 686) of the separate but equal doctrine of Plessy v. Ferguson (163 U.S. 537) ushered in for schools the institutional imperative for equity at the heart of which is the theme of teaching tolerance in schools. This imperative was reinforced by the demands of Congress and the courts that schools lead the tolerance campaign for equitable and inclusive programs for, and education of, the disabled along with access for students previously denied due to race, ethnicity, gender, national origin, and home language. School districts were coping with all of this while facing the realities of enforcing a zero tolerance expulsion policy perceived as a one-size-fits-all policy. If we accept the analysis of Richards (2004, pp. 94-97) that the response to early student discipline measures were largely reliant on in loco parentis and compelling of attendance, the use of corporal punishment as an open display for all students as an early deterrent for misconduct is explained. As corporal punishment has fallen into disfavor and schools are less reliant on their role of acting in place of parents, schools assume a role more structured by legal restraints, greater use of the removal of students from the classroom to their home, in-school suspensions, alternative school settings, or, in extreme situations, expulsion. At the same time, the management of student misconduct is increasingly structured by court tests such as recognizing the due process rights of students in Goss v. Lopez (491 U.S. 565). Fueled by the war on drugs, zero tolerance expulsion policies have found popularity in schools, and soon employed a broader application of the policies to include violence, weapons, and gang activity in schools. In that convenient expansion beyond its original intent and the reaction of the federal court to it is found the thesis of this paper. While Richards’ explanation of student discipline trends is at best oversimplified, it does provide a context for understanding the expansion of the application of the concept of zero tolerance expulsion policy. We contend that zero tolerance expulsion policy has taken on a broad definition by which it became a term of convenience designed to describe the necessary response to cope with the early emerging trend of misconduct in schools. This is best exemplified by the 1990 enactment of the Gun-Free School Zones Act (18 U.S.C. 922), which was designated it a federal offense for anyone to knowingly possessing a firearm in a school zone. In doing so, Congress was attempting to interposition itself between states and schools using the Commerce Clause (U.S. Constitution, Article I, §8, Clause 3) to address a national concern over guns in schools. In United States v. Lopez (491 U.S. 565), the Supreme Court overturned a Texas conviction finding that Congress had exceeded its authority in regulating commerce. Important in this failed attempt on the part of Congress was the obvious attempt by Congress to supplant the state in assuming an assertive role in addressing violence in schools. Not to be deterred from their objective, the Gun Free Schools Act (20 U.S.C. 70) was enacted. The Gun Free Schools Act leveraged the federal government’s position conditioning federal assistance on the enactment of legislation in each state requiring the expulsion for a minimum of one year of a student who brings a firearm to school. Richards (2004) opined, “. . .despite the well intentioned efforts of Congress, the result is that federal involvement in school discipline usurps the state’s power to govern its own school system.” ( p. 99) According to Insley (2001), nearly every state complied within a year. The Supreme Court in South Dakota v. Dole (483 U.S. 203 at p. 206) found that “Congress may attach conditions on the receipt of federal funds. However, exercise of the power is subject to certain restrictions, including that it must be in pursuit of the general welfare.” While it can be argued that the use of federal funds, whether it be the GFSA, ESEA, or NCLB, is for the greater good, the Court has cautioned Congress that they, in the words of Richards (2004, p. 103), “. . . may not explicitly force states to comply via monetary threats/gains.” This specter of the loss of federal funds was reinforced by the inclusion in the reauthorization of the Elementary and Secondary Education Act of a provision for states to enact a zero tolerance expulsion law (Pipho, 1998). Unfortunately, the congressional intent to limit weapons in schools was diverted by the actions of many state legislatures to address a laundry list of exceptions to acceptable student behavior, including but not limited to using zero tolerance expulsion policies for excessive absence, defiance of authority, or disruptive or disorderly behavior. A recent survey of newspaper accounts of the application zero tolerance expulsion policies suggest a troubling trend. The Miami Herald reported that in the 2004-2005 school year that Miami-Dade schools police arrested 2,484 students but only 12 percent of those were for serious crimes involving weapons or drugs. They offered their viewpoint that zero tolerance expulsion policies criminalized childhood and claimed school officials were delegating to police the responsibility for disciplining students (Bailey, 2006). In a related article, the Miami Herald reported on a study by the Advancement Project, an NAACP-affiliated group, claiming that disciplining of students by police was “setting students on the schoolhouse-to-jailhouse track.” (Bailey, 2006) The Canadian Press NewsWire reported that Ontario’s Education Minister reported that their Safe Schools Act has resulted in erratic application of zero tolerance expulsion policies with 113,778 suspension and 106 expulsions in 2000-2001, compared to 152,636 suspension and 1,909 expulsions in 2003-2004. (Oliveira, 2005) The New York Times reported that Chancellor Joel I. Kline received sharp criticism for his zero tolerance policy banning cell phone use on campuses. (Cardwell, 2006) Both Richards (2004) and Insley (2001) acknowledge the reluctance of some local school officials to exercise the provision of the Gun-Free Schools Act, allowing the chief administrative officer of the local education agency to modify the expulsion under their respective state laws. The reluctance of local school officials has spawned court tests that have proved difficult to defend in the courtroom while equally difficult to defend in the public arena where the core institutional value of tolerance for development of children is widely shared. The ebb and flow of child development and myriad of variations manifested by children suggests that establishing uncompromising standards of student behavior may represent a non sequitur. Courts, faced with uncompromising zero tolerance expulsion policies, are challenged to apply the law and constitutional protections while supporting the need for orderly delivery of education and at the same time protecting children. If, on the other hand, threat analysis is observed from the perspective of the exposure of schools to tort claims, schools must then confront not only the reasonable parent standard of in loco parentis but must also rise to defend what a reasonable professional would do when confronted with a potential threat. Case (2004) suggests that reasonable professionals rely on their training and experience and special knowledge of children in the making decisions about risk. Likewise, professionals face claims of causal nexus should their professional judgment prove faulty. When contests concerning the proper application of zero tolerance expulsion policies are presented before the bench, they are invariably predicated on the First Amendment--free speech, Fourth Amendment--search and seizure, and Fourteenth Amendment--equal protection claims. Blumenson and Nilsen (2003) suggest, “Zero tolerance expulsion policies in public education constitute a form of triage: it attempts to protect and better educate one group of children by identifying and excising another” ( p. 65). If true, the unintended consequences of the expansion of the scope of zero tolerance expulsion policies have increased Constitutional implications. First Amendment—Speech Threat analysis has become an essential element for courts in assessing if zero tolerance expulsion policies are properly implemented and applied. Threat analysis has at its core the First Amendment where spoken, symbolic, and written speech is involved. September 11, 2001, added a new element for those charged with implementing zero tolerance expulsion policies. The specter of terrorist threat has been added to the vocabulary of school administrators resulting in some truly bizarre events (see below Enrique Ponce, Jr. and Rocio Ponce v. Socorro Independent School District, 2006 U.S. Dist. Lexis 27164), thus further obscuring a clear definition of the policy intent. Salgado (2005, pp. 1385-1386) looked at the impact of zero tolerance expulsion policies on the protected speech rights of students. He acknowledged that a significant body of court decisions on unprotected speech is decided based on incitement (Brandenburg v. Ohio, 395 U.S. 444), false statements (N.Y. Times v. Sullivan, 376 U.S. 254), obscenity (Miller v. California, 413 U.S. 15), child pornography (Osborne v. Ohio, 495 U.S. 103; New York v. Ferber, 458 U.S. 747), fighting words (Cohen v. California, 403 U.S. 15; Chaplinsky v. New Hampshire, (315 U.S. 568), and threats (NAACP v. Claiborne Hardware, 458 U.S. 886; Watts v. United States, 394 U.S. 705). Salgado contends that threat analysis of adolescent speech differs from that generally considered by the court while emphasizing that genuine threats are not protected. Using Watts (394 U.S. 705, at 707-08), Salgado (2005, p. 1387) reminds us that the threat must be realistic and not mere hyperbole, while indicating that the Supreme Court has looked at true threats as “those statements where the speaker means to communicate a serious express of an intent to commit an act of unlawful violence to a particular individual or group of individuals” (Virginia v. Black, 538 U.S. 343 at pp. 359-60). Salgado further reminds us that the Black Court saw a true threat as “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals (p. 359).” In addition, the Black Court indicated that the actual intent to carry out the threat is not required and that the only intent required is the “intent of placing the victim in fear of bodily harm or death” (pp. 95-96). The matter is further complicated by the difference in the standards applied between circuits. Salgado refers to the Eighth and Ninth Circuits. In United States v. Dinwiddle (76 F.3d 913), the Eighth Circuit applied the reasonable recipient is based on a five-part test ( 925). the reaction of those who heard the alleged threat whether the threat was conditional whether the person who made the threat communicated it directly to the object of the threat whether the speaker had a history of making threats against the person purportedly threatened whether the recipient had a reason to believe that the speaker had a propensity to engage in violence Offering an alternative view, the Ninth Circuit in Lovell v. Poway Unified School District (90 F.3d 367) applied the reasonable speaker standard to determine if a true threat existed by determining “whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of the intent to harm or assault” (United States v. Orozco-Santillan, 903 F. 2d 1262, 1265). Without a clear direction from the Court, Salgado concludes, “administrators are prone to classify virtually everything as a threat, regardless of its actual nature, and then allow the courts to sort it out later at the expense of the taxpayers.” (2005, p. 1392) Accordingly, zero tolerance expulsion policies as applied to speech protected by the First Amendment lack the clear and potentially expansive definition required to guide with proper implementation those so charged in schools. Fourth Amendment--Search and Seizure Accepting the reality that the definition of what constitutes a weapon or drug varies somewhat from state to state and that clear understanding of how each relates to zero tolerance expulsion policies is often ill-defined, the decisions associated with implementing zero tolerance expulsion policies are subject to close scrutiny. Not surprisingly, the courts have been generous in their understanding of the difficulty of this decision making process. As metal detectors and video surveillance become commonplace and enjoy broad acceptance, we know that Goss v. Lopez (491 U.S. 565) taught us that the higher the penalty, the greater the procedural due process threshold. Likewise, substantive due process is subject to close scrutiny when penalties for zero tolerance expulsion policies offenses are severe or fall outside established norms (Insley, 2001). The court record is filled with cases where the search and seizure methods were brought into question. The overwhelming number of those cases has been decided in favor of school districts although, as the penalties increase under zero tolerance expulsion policies with a broader scope of definition, schools should expect greater interest by the courts. In reflecting on search and seizure, Blumenson and Nilsen (2003), New Jersey v. TLO (469 U.S. 325) established the reasonable cause as opposed to probable cause standard for a search by school represents the first of a series of court decisions weakening the Fourth Amendment rights of students. This change is best exemplified in the Court’s view of drug testing of students. In the progression of two cases through the courts, Vernonia Schools District v. Acton (515 U.S. 646) and Board of Education of Independent School District No. 92 of Pottawatomie v. Earls (536 U.S. 822), judicial approval was given to school boards throughout the nation for mandatory random suspicion-less drug testing. One can conclude that the relationship between constitutionally protected Fourth Amendment rights and the uncertain scope of zero tolerance expulsion policies topics could also result in increased judicial interest. Fourteenth Amendment—Equal Protection and Due Process While few oppose, including the courts, the immediate removal of drug sellers/users and violent students who pose a threat to the safety of the school community, balancing the state interests against those of the individual in the application of zero tolerance expulsion policies is accompanied by the ever-present testing of the proper application of equal protection. Claims abound that zero tolerance expulsion policies disproportionately impact African American children, particularly males (Evans, 2002; Wagstaff, 2004; Civil Rights Project, 2000). Additionally, removing a student from school altogether deprives that student of a property right to education. While some would argue that education is not a property right (see Rodriquez v. San Antonio Independent School District, 337 F.Supp. 280), in considering this matter, courts are faced with balancing state constitutional assurances of equity and adequacy with the school’s desire to remain true to the uncompromising nature of zero tolerance expulsion policies. In an effort to circumvent the potential for court challenge, alternative education is presented as an option while in the eyes of some, such as Nobel laureate economist James Heckman (2003), there is question whether most alternative education programs adequately address the unique needs of students referred to those programs. Courts will continue to struggle to determine the impact of zero tolerance expulsion policies on what the state owes students as a fundamental liberty or property right for a minimally adequate education (Blumenson and Nilsen, 2003). A deeper challenge to all of those operating schools is to ready the curriculum, instruction, and operation of alternative education to meet the equity test of the Fourteenth Amendment. As will be seen in the next section, momentum is mounting to test the efficacy of alternative schools. Powerful arguments are also being tested questioning state action to remove students from school under zero tolerance expulsion policies when the long-term state burden to provide a minimally adequate education through presently operational alternative education programs may not be up to the task. The great dilemma for those committed to execute zero tolerance expulsion policies in a fair and equitable, yet assertive manner, is that Fourteenth Amendment claims also arise from taking into account individual circumstances in determining penalties. When individual circumstances come into play and policy implementers are allowed to exercise discretion, the courts are primed to consider the equity of those decisions. What remains is a classic Freudian “horns of the dilemma” where, no matter which way you turn, the consequences prove to be less than desirable. Implications for Practice of Recent Federal Court Action Resolving disputes is the business of courts while weighing the facts against the law and constitutional provisions. Zero tolerance expulsion policies, prodded into existence by federal incentives, present the court with significant challenges. In an effort to assess the reception of the federal court to cases involving zero tolerance expulsion policies, a search was conducted, and 26 recent cases were selected as representing the span of arguments employed. We make no claim to the comprehensive nature of the cases selected, only that the cases generally represent the issues the courts are facing with respect to these policies. The claims alleged by the plaintiffs were found to generally fit into one or more of six broad categories: Zero tolerance expulsion policies violate 42 U.S.C. § 1983 particularly the protected right of the student to procedural and substantive due process Zero tolerance expulsion policies are faulty because of the failure of those charged with implementation to exercise reasonable care regarding hiring, supervision, and retention of employees Zero tolerance expulsion policies and rules are unconstitutionally vague and in some cases interfere with the free exercise provision of the First Amendment Zero tolerance expulsion policies infringe on the protected property right to attend school, damage the future of the student, and deny equal protection through harsh punishment including referring students to alternative schools that do not provide for equal protection Zero tolerance expulsion policies often involve illegal search and seizure Zero tolerance expulsion policies are unconstitutionally vague when determining “true threats” Zero tolerance expulsion policies violate 42 U.S.C. § 1983 particularly the protected right of the student to procedural and substantive due process Not unlike most cases dealing with schools that end up in federal court, the first count of the complaint generally alleges violation of 42 U.S.C. § 1983. Of the 26 cases studied, all but two of them directly or indirectly claimed a constitutional deprivation as central to their complaint. Common among the deprivation claims were due process violations. Defendant school boards often counter that the §1983 complaint is outside the jurisdiction of the court because not all administrative remedies had been exhausted by the plaintiff, which in S.K. and Z.K. v. Anoka-Hennepin Independent School District No. 11 (399 F. Supp. 2d 963) the plaintiff’s countered that in Patsy v. Board of Regents (457 U.S. 496) it was established that administrative remedies need not be exhausted prior to when a §1983 action is filed. In that is a reminder that a firmly established and carefully articulated process for handling each stage of the expulsion proceeding is essential for the successful defense of a §1983 claim and protection of the rights of those involved. In Megan Wagner, et al. v. Fort Wayne Community Schools, et al. (255 F. Supp. 2d 915), a parent’s request was denied to have the expulsion hearing of their daughter reheard and governed by the Federal Rules of Evidence, to which the court reminded that the findings of Wood v. Strickland (420 U.S. 308 pp. 326-327) apply to such deprivation claims. But §1983 does not extend the right to re-litigate in federal court evidentiary questions arising in school disciplinary proceedings or the proper construction of school regulations. The system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members, and §1983 was not intended to be a vehicle for federal-court corrections of errors in the exercise of that discretion which do not rise to the level of violations of specific constitutional guarantees. In Matter of B. S. v. Board of School Trustees, Fort Wayne Community Schools, et al (255 F. Suppl 2d 891; 2003 U.S. Dist. LEXIS 11506) and Johnnie Caston, et al, v. Benton Public Schools, et al (2002 U.S. Dist. LEXIS 11299) the court reminds us that even short-term suspensions covered by Goss v. Lopez (491 U.S. 565) and Newsome v. Batavia Local School District (842 F. 2d 920) require a minimum of oral or written notice of the charges and the opportunity for students to present their side of the story (Goss at 581). Given the severity of expulsion, the failure to properly ensure for the protections of due process rights of the student opens the door to claims of deprivation of liberty and property interests of the student (see below). In a related expulsion case, Richard Johnson, et al. v. Rodney C. Collins, et al (2002 DNH 211; 233 F. Supp. 2d 241; 2002 U.S. Dist. LEXIS 23660), the court looked at the First Circuit and found in Carey on Behalf of Carey v. Maine School Administrative District #17 (757 F. Supp. 906 at 919) seven minimum requirements that must be observed in student discipline hearings: the student must be advised of the charges against him the student must be informed of the nature of the evidence against him the student must be given the opportunity to be heard in his own defense the student must not be punished except on the basis of substantial evidence the student must be permitted the assistance of a lawyer in major disciplinary hearings the student must be permitted to confront and to cross-examine the witnesses against him the student has the right to an impartial tribunal. Item #6 can represent an interesting dilemma when minors become witnesses in school discipline hearings where attorneys representing defendant students engage in cross examination when the impartial hearing officer is ill-prepared to manage the proceedings that are adversarial by their very nature. Be that as it is, the guidance of the court in Carey can prove useful as a template for guarding against due process error. Recent Federal Court case law suggests a continuing trend of support for the decisions of the process employed by public school districts in ensuring due process. Often accompanying the claim of failure to provide procedural due process is the claim that boards and their employees demonstrated substantial prejudice in reaching the decision to expel. It is the burden of the plaintiffs to show substantial prejudice to establish a violation of procedural due process. Although the court does not hold the proceedings employed in school district discipline hearings to the same standard they would a similar hearing in the legal system, they do demand that school districts provide students with the minimum standards of due process; absent these minimum standards, the court is clearly ready to overturn the decisions of school boards. Zero tolerance expulsion policies are faulty because of the failure of those charged with implementation to exercise reasonable care regarding hiring, supervision, and retention of employees The conflated nature of many arguments posed in federal court is best exemplified by claims that staff was ill-prepared to implement the zero tolerance expulsion policies. In Z.K. v. Anoka Hennepin Independent School District (695 N.W. 2d 656) the Minnesota Court of Appeals reversed the expulsion decision of both the Department of Education and the local board in a BB gun incident near a school bus stop. In finding for the students, the court overturned the expulsion decision and remanded it back to the Department of Education. In doing so, the court viewed the request by the school’s administration for the parents to waive their due process rights and the local board’s failure to inform parents of the availability of free and low-cost legal assistance as sufficient to invalidate the expulsion. On remand to the State Department of Education, the department directed the local board to determine if it planned to proceed with the expulsion. The local board proceeded with the expulsion, to which the parents filed suit claiming, in part, that the principal had failed to exercise reasonable care in hiring, training, supervising, and retaining certain employees. The Federal Court found the state appeals court in error regarding the failure of the assistant principal and board to advise the parents of the availability of legal assistance under the Minnesota Pupil Fair Dismissal Act, holding that their actions were not “ . . egregious, irrational, or motivated by ill-will.” (p. 664) While the Z.K. Court affirmed the state department and district’s actions, staff must be ever watchful that their comments are not considered a form of legal advice by predicting the outcome of expulsion proceedings, as was the case in Z.K. Having done so opens the administration to the allegation claimed in this proceeding. Zero tolerance expulsion policies and rules are unconstitutionally vague and in some cases interfere with the free exercise provision of the First Amendment Often due process claims are based upon vague policies or rules. Such is the case in Tyler Chase Harper v. Poway Unified School District, et al. (345 F. Supp. 2d 1096; 2004 U.S. Dist. LEXIS 25209) where a student expressed his strongly held beliefs against homosexuality during a time when the school was purportedly scheduling a “Day of Silence.” The administration saw the t-shirt containing the student’s sentiment as being disruptive and requested its removal with the real or implied threat (unclear) that failure to do so would lead to expulsion. In considering the many legal questions, the court looked at the interaction of three district policies and rules as justification for the actions taken by the defendants. The first dealt with student dress where examples were provided in the student handbook that prohibited “. . .derogatory connotations directed toward sexual identity.” (p. 1111) The second was a board policy where free exercise of speech was supported whether controversial or not, and specifically mentioned clothing. The policy further confined the scope of speech by restricting those expressions that were obscene or libelous, or that incite disruption, and/or advocated racial, ethnic, or religious prejudice. The third item related to a board policy defining hate behaviors. The plaintiff claimed that these policies were vague and lacked sufficient objective standards, which gave opportunity to those charged with enforcing those policies and rules to do so in a discriminatory manner, thus violating due process. In defense of their position, the plaintiffs employed Grayned v. City of Rockford (408 U.S. 104, 33 L. Ed. 222, 92 S. Ct. 2294) claiming that the policies and rules required subjective decision making that “ . . . invite arbitrary and discriminatory enforcement by giving unbridled discretion to enforcement officials” (p. 109). The Harper Court viewed school authority to interpret policy and rules as being much broader than that of Greyned. The court found the district’s policies and rules were not vague and a reasonable student (emphasis added) would have found the t-shirt to be prohibited. Again, we find the Federal Court generally supportive of schools and their rulemaking and policy function. What teeters on the edge of serious erosion of that support is when policies and rules are not artfully drafted giving plaintiffs ample opportunity to wage a persuasive argument regarding the arbitrary actions of administration and board. Zero tolerance expulsion policies infringe on the protected property right to attend school, damage the future of the student, and deny equal protection through harsh punishment including referring students to alternative schools that do not provide for equal protection In Stephen Rossi v. West Haven Board of Education, et al. (359 F. Supp. 2d 178; 2005 U.S. Dist. LEXIS 3700), the plaintiff alleged that his punishment resulting from his arrest on ten counts of illegal sale of a controlled substance and five counts of larceny was more severe than that applied to similarly situated students. His allegation was based upon the “class of one” theory of Village of Willowbrook v. Olech (528 U.S. 562, 145 L. Ed. 2d 1060, 120 S. Ct. 1073). It is important to understand that both sides agreed to the material facts. The court specified, “to prevail under Olech, [a] plaintiff needs to allege that [he was] ‘intentionally treated different from others similarly situated and that there was no rational basis for the difference in treatment’” (African Trade & Information Center, Inc. v. Abromaitis, 294 F. 3d 355, 364). In considering this claim and eventual ruling against the plaintiff, and in light of the agreed upon facts of the case, the court concluded that the plaintiff had failed to provide adequate “foundation” to defend his claim for failure of the board to show that the rational basis prong of Olech had been violated. In a related matter, several recent Federal Court cases dealt with the severity of the punishment assessed from expulsion proceedings that affect the student’s future to receive equal protection and the alleged impact it has on the student’s future and his/her right to receive equal protection. In Hunter Adrian Marner v. Eufaula City School Board, et al. (204 F. Supp. 2d 1318; 2002 U.S. Dist. LEXIS 10200), the plaintiff argued that expulsion with a referral to alternative education programs for a weapons violation was tantamount to eliminating him from attendance at the Naval Academy and that the education offered in the alternative school setting would adversely affect his school preparation. Relying on Goss v. Lopez (491 U.S. 565) and C.B. v. Driscoll (82 F. 3d 383), the court decided that the plaintiffs claim lacked substance because it was unable to show that the alternative school was significantly inferior to the education received at the regular public school. While the court appears ready to support expulsion with referral to alternative education programs, the present interest in equity and adequacy of school programs looms as a potential standard for redefining future complaints of this sort. Add to this the ongoing discussion of the nature of alternative education by such researchers as Heckman and Kruger (2003), the stage is set for the potential for different outcomes as similar cases come before the court. Naked a defense of the adequacy of alternative education programs, a defendant district may have to retreat behind San Antonio Independent School District v. Rodriguez (411 U.S. 1), in which the fundamental right to education was brought into question. Zero tolerance expulsion policies often involve illegal search and seizure Fourth Amendment violation claims still abound. T.L.O. v. New Jersey (469 U.S. 325) forms the defense in the majority of cases with the “reasonableness” standard applied to school officials. This defense has been assisted by the drug testing allowance provided by Vernonia School District 47J v. Acton (515 U.S. 646; 115 S.Ct. 2386) and more specifically by Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls (536 U.S. 822; 122 S.Ct. 2559). In the cases sampled, the court ruled in favor of the defendant school district in each case. It did not matter whether the case dealt with expulsion related to drug use even when no drugs were found (Jennyfer Bravo v. Norman Hsu, et al, 404 F. Supp. 2d 1195; 2005 U.S. Dist. LEXIS 38799), or where no drugs were found when a strip search was conducted (Chad Rinker v. Paul J. Siper, Charles Middaugh, Stroudsburg Area School District, 264 F. Supp. 2d 181; 2003 U.U. Dist. LEXIS 8324), or when drug sniffing dogs were employed, plus strip search along with the claims of excessive force (Flossie Rudolph, et al, v. Lowndes County Board of Education, et al, 242 F. Supp. 2d 1107; 2003 U.S. Dist. LEXIS 658), or where drug sniff dogs were used to search a car (Hunter Adrian Marner v. Eufaula City School Board, et al, 204 F. Supp. 2d 1318; 2002 U.S. Dist. LEXIS 10200). It is therefore reasonable to assume that the application of zero tolerance expulsion policies to search and seizure cases generally meet the reasonableness standard and that these cases are being handled properly by schools save when heavy handedness is employed. Zero tolerance expulsion policies are unconstitutionally vague when determining “true threats” One of the most difficult and perplexing questions is, What constitutes a true threat? At the heart of this question is the theme of this paper – have zero tolerance expulsion policies resulted in a common, agreed-upon application, or have they been morphed into an unpleasant or even offensive outcome? Four recent cases seem emblematic of the confrontation when zero tolerance expulsion policy as been employed when establishing if a true threat exists. Two cases from Canada and one from the United States attempted to settle the classification of kirpan (ceremonial dagger) worn by young men as a tenet of their Sikh religion. In the United States case of Gurdev Kaur Cheema v. Harold Thompson, et al. (67 F. 3d 883), the Ninth Circuit concluded that the district had a compelling state interest to ban kirpan, but due to a complete lack of evidence to the contrary, a “wholesale” ban was seen as not warranted, and absent the presentation of such evidence by the district, the court ordered the parties to negotiate to determine a compromise solution. Faced with a similar ban, the Canadian Supreme Court ruled 8-0 (Multani v. Commission scolaire Marguerite-Bourgeoys, 2004 J.Q. No. 1904) to allow kirpan on campuses largely in compliance with the suggested remedies found in the Ninth Circuit decision. In the case of Adam Porter and Andrew Porter Breen v. Ascension Parish School Board, et al. (2004 U.S. Dist. LEXIS 1175) when Adam was 14 years old he drew a sketch of East Ascension High School in which the school was depicted soaked with gasoline with an individual standing by with a torch and a missile. The picture also showed two students holding guns and throwing a brick at the school’s principal. Explicit language was included. The drawing was stored for two years. Adam’s brother, Andrew, found the drawing pad and, during a bus ride to school, showed Adam’s drawing to another student, who informed the bus driver. A search followed of Adam’s backpack that found references to death, drugs, and gang activity along with a razor blade described as a box cutter. This led to a notification of expulsion proceedings. During the hearing, Adam’s mother was informed that the hearings were regularly decided in favor of the school and offered an alternative school setting for Adam. Among other alleged complaints was a derivation of First Amendment rights to which the court did not see the drawings as protected. As to the question of whether the behavior was a true threat, they relied on a five-part test (see above) from United States v. Dinwiddle (76 F. 3d 913). In testing Adam’s drawing against the standard established by the Dinwiddle court, the court found that the principal had acted appropriately, thus affirming the matter as a true threat. In Anthony Latour, et al. v. Riverside Beaver School District (2005 U.S. Dist. LEXIS 35919), the court used the Black court (Virginia v. Black, 538 U.S. 343) criteria (see above) to determine if a true threat was present in four rap songs recorded by the student at home. The court found that the language used in the songs provided no evidence that violence was intended, no evidence that the subject of the songs was threatened, and that the writer had no history of violence. In a matter reminiscent of Tinker, a student wrote in a notebook about the pseudo-Nazi group at a high school campus suggesting an attack on the school. Entitled “My Nazi Diary Based on a True Story” (emphasis added) the author characterized it as a work of fiction (sic). Characterizing it as a “terrorist threat” under Texas law, the student was referred to an alternative school. Important in the discussion was the fact that when made aware of the notebook, the principal met with the parents while allowing the student to return to the general school population – the very population he was protecting when he had established the content to be a true threat. The court questioned the return of the student to class where he would have ample opportunity to carry out the threat. His return to class was uneventful, thus bringing into question the characterization of the student’s actions as constituting a true threat. The court methodically dismantled the argument of the school, including the evidence presented along with the scope of the investigation conducted. While the case was decided on many points, the school did not sustain its claim that the student’s actions represented a true threat. Determining a true threat remains a slippery slope that is perilous for those who fail to act without careful investigation and weighing of the facts prior to action, although the courts appear to be ready to support reasonable actions by district personnel. Concluding Comments As the country becomes more aware of the social and economic impact of the increasing number of school-age young people no longer in school, whether as a result of zero tolerance expulsions or simply dropping out, a rising tide (to borrow a term from United States Department of Education, A Nation at Risk, 1983) of dissatisfaction is bound to result. While school crime is apparently abating with some credit apparently due to zero tolerance expulsion policies, all Americans are bound to feel the impact of an emerging under-educated workforce with heavy reliance on community assistance. It is contingent on the education community and the courts that arbitrate our disputes that we confine the defined limits of zero tolerance policies to those students who are truly disrupting the school environment; this must be done while creating an entirely new set of equitable alternatives designed to serve these students’ needs. Failing to do so could threaten further the support schools enjoy. It is not inconceivable that the support of the courts might also wane when the advanced sorting of students by such potential expansive policies threatens protections. Finally, as the American Bar Association (2006) admonishes, absent common sense provisions public policy is destined to do little to accomplish the purpose for which it was approved. References American Bar Association. (2006). Zero tolerance policy. ABA Juvenile Justice Policies. http://www.abanet.org/crimjust/juvjus/zerotolreport.html Bailey, P. (2006). More Miami-Dade students face detention for misdemeanors: A zero tolerance expulsion policies policy against violent crimes has put more Miami-Dade students in handcuffs--for fighting, graffiti, and other minor offenses. The Miami Herald, March 19, 2006. Bailey, P. (2006). Zero-tolerance policy for schools in report as overreaching. The Miami Herald, April 20, 2006. Blumenson, E., & Nilsen, E. S. (2003). One strike and you’re out? Constitutional constraints on zero tolerance expulsion policies in public education. Washington University Law Quarterly, 81, 65, 2003. Cardwell, D., & Hu, W. (2006). Cellphones in schools: From irritant brouhaha. The New York Times, May 15, 2006. Case, R. (2004). A system on trial: Identifying legal standards for educational, ethical and legal defensible approaches to bullying in schools. Unpublished dissertation, Simon Fraser University. February 2004. Civil Rights Project Harvard University (2000). Opportunities suspended: The devastating consequences of zero tolerance expulsion policies and school discipline. (Conference Report) 2000. DeVoe, J. F., Peter, K., Noonan, M., & Baum, K. (2005). Indicators of School Crime and Safety: 2005 (NCES 2006-001/NCJ 210697). U.S. Departments of Education and Justice. Washington, DC: U.S. Government Printing Office. Evans, S. (2004). The impact of zero tolerance school discipline policies on school crime rates: How suspensions and expulsions affect African American and special education students, Unpublished dissertation, University of San Francisco. Fowler, F. C. (2004). Policy Studies for Educational Leaders: An Introduction, Prentice-Hall, Inc., Upper Saddle River, NJ. Gorman, K., & Pauken, P. (2003). The ethics of zero tolerance policies. Journal of Educational Administration, 41(1), 24-36. Heckman, J. J., & Kruger, A. B. (2003). Inequity in America: What Role for Human Capital Policies? MIT Press, Cambridge, MA. Insley, A. C. (2001). Suspending and expelling children from educational opportunities: Time to reevaluate zero tolerance policies. American University Review, 50, 1039-1074. Oliveira, M. (2005). Review looking into spike of suspensions since safe schools act was enacted, Canadian Press NewsWire, November 23, 2005. Pedersen, D. M. (2004). Zero tolerance expulsion policies. In J. C. Hanks (Ed.), School violence: From discipline to due process. Chicago, IL: ABA Publishing. Pipho, C. (1998). Living with zero tolerance policies. Phi Delta Kappan, 80, 372-378. Richards, J. (2004). Zero room for zero tolerance policies: rethinking federal funding for zero tolerance policies. University of Dayton Law Review, 30, 91-117. Russo, C. J. (2004). The Law of Public Education, Foundation Press, New York, N.Y. Salgado, R. (2005). Protecting student speech rights while increasing school safety: School jurisdiction and the search for warning signs in a post-Columbine/Red Lake environment. Brigham Young University Law Review, (FIND CITE). Wagstaff, L. H. (2004). Zero-tolerance discipline: The effect of teacher discretionary removal on urban minority students. Unpublished dissertation, University of Texas, Austin. United States Department of Education (1983). A nation at risk: The imperative for educational reform. Washington, D.C.: U.S. Government Printing Office. Case Law Adam Porter and Andrew Porter Breen v. Ascension Parish School Board, et al., 2004 U.S. Dist. LEXIS 1175. African Trade & Information Center, Inc. v. Abromaitis, 294 F. 3d 355, 364. Alyssa Lotto v. Hamden Board of Education, 400 F. Supp. 2d 451; 2005 U.S. Dist. LEXIS 31247. Anthony Latour, et al. v. Riverside Beaver School District, 2005 U.S. Dist. LEXIS 35919. Bandon Tun, et al. v. Fort Wayne Community Schools, et al.; 326 F. Supp. 932; 2004 U.S. Dist. LEXIS 13925. Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls,536 U.S. 822, 122 S.Ct. 2559. Brown v. Board of Education of Topeka, 347 U. S. 486, 74 S.Ct. 686. Carey on Behalf of Carey v. Maine School Administrative District #17, 757 F. Supp. 906. C.B v. Driscoll, 82 F. 3d 383 Chad Rinker v. Paul J. Siper, Charles Middaugh, Stroudsburg Area School District, 264 F. Supp. 2d 181, 2003 U.U. Dist. LEXIS 8324. Debbie Smith, et al. v. James Barber, et al., 316 F. Supp. 2d 992; 2004 U.S. Dist. LEXIS 7859. Evan Cohn v. New Paltz Central School District, et al., 363 F. Supp. 2d 421; 2005 U.S. Dist. LEXIS 5001. Enrique Ponce, Jr. and Rocio Ponce v. Socorro Independent School District, 2006 U.S. Dist. Lexis 27164. Flossie Rudolph, et al. v. Lowndes County Board of Education, et al., 242 F. Supp. 2d 1107; 2003 U.S. Dist. LEXIS 658. Goss v. Lopez, 491 U.S. 565. Governor Wentworth Regional School District v. Paul and Deborah Hendrickson, 2006 DNH 31; 421 F. Supp. 2d 410; 2006 U.S. Dist. LEXIS 13433. Grayned v. City of Rockford, 408 U.S. 104, 109; 33 L. Ed. 222; 92 S. Ct. 2294 Gurdev Kaur Cheema v. Harold Thompson, et al., 67 F. 3d 883. Hunter Adrian Marner v. Eufaula City School Board, et al., 204 F. Supp. 2d 1318; 2002 U.S. Dist. LEXIS 10200. In Matter of B. S. v. Board of School Trustees, Fort Wayne Community Schools, et al., 255 F. Supp. 2d 891; 2003 U.S. Dist. LEXIS 11506. James S. Pomeroy, Sr. v. Ashburham Westminster Regional School District, 410 F. Supp. 2d 7; 2006 U.S. Dist. LEXIS 3086. Jeremy Collins v. Prince William County Public Schools, et al., 2004 U.S. Dist. LEXIS 28298. Jennyfer Bravo v. Norman Hsu, et al., 404 F. Supp. 2d 1195; 2005 U.S. Dist. LEXIS 38799. Johnnie Caston, et al. v. Benton Public Schools, et al., 2002 U.S. Dist. LEXIS 11299. Kimberly Jacobs, et al. v. Clark County School District, et al.; 373 F. Supp. 2d 1162; 2005 U.S. Dist. LEXIS 11766. Levi Waln v. Todd County School District, et al., 388 F. Supp. 2d 994; 2005 U.S. Dist. LEXIS 21487. Megan Wagner, et al. v. Fort Wayne Community Schools, et al., 255 F. Supp. 2d 915; 2003 U.S. Dist. LEXIS 5624. Multani v. Commission Scolaire Marguerite-Bourgeoys, 2004 J.Q. No. 1904. (Canadian Appeals Court Action). New Jersey v. TLO, 469 U.S. 325. Newsome v. Batavia Local School District, 842 F. 2d 920. Patsy v. Board of Regents, 457 U.S. 496. Plessy v. Ferguson, 163 U.S. 537. Richard Johnson, et al. v. Rodney C. Collins, et al., 2002 DNH 211; 233 F. Supp. 2d 241; 2002 U.S. Dist. LEXIS 23660. Rick Tassoni, et al. v. Peter Paris, et al., 2004 U.S. Dist. LEXIS 16839. Rumalso Escatel v. Robert Atherton, et al., 2001 U.S. Dist. LEXIS 9212. San Antonio Independent School District v. Rodriguez, 411 U.S. 1. S.K. and Z.K. v. Anoka-Hennepin Independent School District No. 11, 399 F. Supp. 2d 963. Stephen Butler, et al. v. Rio Rancho Public School Board of Education, 245 F. Supp. 2d 1188; 2002 U.S. Dist. LEXIS 26238. Stephen Rossi v. West Haven Board of Education, et al., 359 F. Supp. 2d 178; 2005 U.S. Dist. LEXIS 3700. South Dakota v. Dole 483 U.S. 203. Tinker v. Des Moines Independent Community School District, 393 U.S. 503. T.L.O. v. New Jersey, 469 U.S. 325. Tyler Chase Harper v. Poway Unified School District, et al.; 345 F. Supp. 2d 1096; 2004 U.S. Dist. LEXIS 25209. United States v. Lopez, 131 L.Ed2d 626, 115 S.Ct. 1624. United States v. Orozco-Santillan, 903 F. 2d 1262. Vernonia School District 47J v. Acton, 515 U.S. 646; 115 S.Ct. 2386. Village of Willowbrook v. Olech, 528 U.S. 562; 145 L. Ed. 2d 1060; 120 S. Ct. 1073. Virginia v. Black, 538 U.S. 343. Wood v. Strickland, 420 U.S. 308. Z. K. v. Anoka Hennepin Independent School District, 695 N.W. 2d 656.