School Climate & Safety

Interpretations of ‘Zero Tolerance’ Vary

By Darcia Harris Bowman — April 10, 2002 8 min read
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Superintendent Gene Buinger agreed there was no reason to suspect 16-year-old honors student Taylor Hess of lying when the teenager said a bread knife found in the back of his truck last month was dropped there accidentally.

Just the same, the law required the Hurst-Euless-Bedford school district in Bedford to expel the student—a punishment that was widely criticized as being excessive. The only choice district officials had was in deciding how long the suspension would last.

That’s how zero tolerance works—at least in Texas.

Since 1994, when Congress passed the Gun-Free Schools Act that mandates a one-year expulsion for any student caught with a firearm at school, such no-nonsense punishments have become commonplace throughout the country. So, too, has confusion over what the term “zero tolerance” means, and how much latitude local school leaders have in deciding when and how to apply it.

Critics of such policies argue that administrators and school boards often don’t understand state and federal zero-tolerance laws, or fall back on them as a rationale for enacting even tougher policies at the district level.

“What we’re getting is a real foxhole mentality from administrators who are scared to death they’re going to get sued,” said William V. Huntington, a coordinator for the Oklahoma Criminal Justice Resource Center, which released a report in December that panned zero tolerance as a failed policy.

“Schools are using these policies to get rid of kids they don’t want,” he said. “It’s brutal, but that’s what we’re seeing.”

Some experts defend local districts, arguing that what may be portrayed in news accounts as draconian discipline or local bumbling is often a case of school administrators having to walk a tightrope between the letter of the law and their own judgment.

“I think we have a tendency to throw everything bad that happens to kids under the rubric of zero tolerance,” said William Modzeleski, the director of the U.S. Department of Education’s Safe and Drug-Free Schools Program. “For the most part, these laws are passed by legislatures, and schools have to implement them. [Mr. Buinger] isn’t hiding behind the law. He’s enforcing it, as are most superintendents.”

Johnny Veselka, the executive director of the Texas Association of School Administrators, agreed. “Obviously, it’s a very difficult decision for a superintendent or principal to make when they encounter a student with a weapon in school,” he said. “At least from my perspective, the process worked in this school district, this time.”

Legislating Discipline

Exactly how much latitude school officials have in applying zero-tolerance policies is a source of debate.

The federal Gun-Free Schools Act does mandate at least a one-year expulsion for any student caught at school with a gun. But the law also directs states to allow school officials to modify the terms of expulsion “on a case-by-case basis.”

Congress considered that escape clause a critical component of any zero-tolerance law, Mr. Modzeleski said. “The federal law was intended to be a serious consequence for what Congress recognized as a serious offense. But the lifesaver is the provision that says you have the right to modify that expulsion based on extraordinary or mitigating circumstances.”

“Of course,” he added, “you can argue that discretion cuts both ways.”

States can limit local decisionmaking by adopting more prescriptive laws. While a few states have zero-tolerance statutes that closely mirror the federal safe-schools law, some legislatures have gone far beyond it.

“As the umbrella of zero tolerance expanded over the years, it tended to minimize and limit administrators’ discretion to some extent,” said Ronald D. Stephens, the executive director of the National School Safety Center in Westlake Village, Calif.

In Virginia, for instance, the zero-tolerance law adds to guns any “destructive device,” including an explosive, incendiary, or poison gas; a bomb, grenade, or a rocket having a propellant charge of more than 4 ounces; a missile having an explosive or incendiary charge of more than one-quarter ounce; a mine, or any weapon that can be converted into an explosive or firearm.

The Texas legislature added possession of a knife or club and physical and sexual assault to the list of on-campus offenses that earn immediate expulsion. Detailed definitions for most of the actions and weapons included in the school zero-tolerance law can be found in the state penal code; the bread knife in the Bedford teenager’s truck fit the bill.

The state law also requires districts to expel first, and ask questions later.

“If a student takes an illegal knife as defined by the law on campus, does that warrant expulsion? Yes—[a district] must expel for that knife,” said Robert W. Muller, an associate commissioner of the Texas Education Agency.

Local Discretion

Zero-tolerance laws generally do not, however, render administrators completely powerless in the discipline process, a fact that some experts say is regularly—and sometimes deliberately—overlooked by district officials.

In Oklahoma, the federal law serves as a jumping-off point for defining zero-tolerance offenses. Beyond prohibiting firearms, the state has outlawed possession on school grounds of a long list of weapons, including daggers, bowie knives, dirk knives, switchblade knives, spring-type knives, sword canes, knives having blades that open automatically, blackjacks, hand chains, metal knuckles, or any other offensive weapon.

Like many states, though, Oklahoma specifies a series of reasons for which a student may be expelled. That means district officials have the final say in most cases.

“Sometimes, it’s easier to blame the entity that created the law to absolve yourself of any fault,” said Kathy Christie, a vice president of the Education Commission of the States in Denver. “It’s true that some states have been more specific and gone above and beyond the federal law in describing things like the length of the knife blade, but I don’t know of any states that have taken away that local discretion.”

In the Bedford case, Texas education officials say the superintendent was correct when he said he had no choice but to expel junior Taylor Hess for having a bread knife with a 10-inch blade in his truck. It didn’t matter that Mr. Hess was a good student. Nor did it matter that his parents vouched for him, insisting that the knife had been dropped while the teenager was hauling his grandmother’s belongings to the local Goodwill store.

But the original punishment imposed on the teenager—one year in a juvenile-justice education program and banishment from district property and school-sponsored activities—was the district’s choice to make despite statements to the contrary by the superintendent, said Mr. Muller of the state education agency.

“There is zero tolerance [in the state law] on certain offenses,” Mr. Muller said, “but districts do have discretion to determine the term of the expulsion.”

Confusion over that degree of flexibility seemed to persist even after officials in the 20,000-student district opted to shorten Mr. Hess’ punishment to a five-day suspension.

District officials did not return calls for comment, but in a public statement announcing the about-face late last month, Superintendent Buinger said the district was able to shorten the student’s expulsion because he had a knife instead of a gun, according to the Associated Press.

With controversial expulsions like the one in Texas continuing to make news, more and more policymakers are calling for changes—and in some cases, an end—to zero-tolerance disciplinary policies.

A Litmus Test

Some states have already acted. In Utah, the governor signed a bill in March 2001 that requires administrators to meet with any student expelled for a zero-tolerance offense to decide if the punishment should be changed.

A 2000 California law gives districts strict time limits for responding to requests from expelled students for information on which to base appeals.

And in Mississippi, a 2-year-old law attempts to clarify the authority of superintendents, principals, and school boards to suspend, expel, or move zero- tolerance offenders into alternative education programs.

In some states, lawmakers want to limit that authority.

A Virginia state legislator made an unsuccessful attempt this year to pass a bill that would prevent administrators from suspending students for using physical force to defend themselves or for bringing eating utensils or over-the-counter medicines to school.

“The problem as I see it is that the educational bureaucracy has decided it’s too hard to determine whether someone is innocent or guilty, so they’re just deciding everyone is guilty,” said Bradley P. Marrs, a Republican member of the Virginia House of Delegates.

Delegate Marrs said he became convinced there was a problem when he saw cases like the suspension of a student at his child’s middle school for bringing a plastic knife to school so the youngster could share a birthday cake with friends. The knife was given to the boy by his mother—a teacher, Mr. Marrs said.

“To the extent that you’re hammering real violators, you have my blessing,” the lawmaker said. “But I have a problem with this willingness to punish innocent children.”

For districts seeking to inject a greater degree of local judgment into their policies without state intervention, Mr. Huntington of the Oklahoma Criminal Justice Resource Center suggests a simple test.

“We’re advising [school officials] to call the police,” he said. “If the police see a probable cause for arrest, you’ve got a case for zero tolerance and grounds for expulsion. If administrators had to do that, I think they’d stop and think about whether they have a suspension-level problem, or a case that calls for some other form of corrective action.”

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A version of this article appeared in the April 10, 2002 edition of Education Week as Interpretations of ‘Zero Tolerance’ Vary

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