Lawyers’ Group Pans ‘Zero Tolerance’ Rules

Citing what it sees as a troubling lack of common sense that schools sometimes use when applying “zero tolerance” discipline policies, the American Bar Association approved a resolution last week opposing such policies.

But some school groups said the influential lawyers’ group shouldn’t be so quick to condemn the tough student discipline measures.

The resolution says that the association supports strong policies against weapons and crime in schools, but that policies mandating equal punishments for largely different acts of misbehavior will not have the support of the ABA, a Chicago-based group that represents more than 400,000 lawyers nationwide.

Rather, the association said, it supports policies that allow school officials to judge each case individually and that provide alternatives to mandatory expulsion or referral to law enforcement—the standard punishments handed out under zero-tolerance policies.

“This proposal, if implemented, would relieve [schools] from the burden of being stupid,” argued Michael Johnson, a representative of the ABA Criminal Justice Section.

The adoption of zero-tolerance policies gained momentum in the middle to late 1990s, following the passage of the federal Gun-Free Schools Act of 1994, which mandates yearlong expulsions for students caught possessing firearms on school campuses. As part of the law, schools were also required to refer those students to criminal-justice or juvenile-justice authorities. However, the law also states that the chief administrative officer for a local school district has the power to modify the expulsion requirement on a case-by-case basis.

Then, during the 1997-98 school year, a spate of school shootings in places such as Paducah, Ky.; Jonesboro, Ark.; and Springfield, Ore., alarmed school leaders, who began seeking tougher punishments for violent or potentially violent behavior. That concern grew even greater in the spring of 1999, when two heavily armed teenage boys killed 12 students and a teacher at Colorado’s Columbine High School before killing themselves.

Position Debated

And it’s within that context that some school groups question the ABA’s harsh critique of zero-tolerance policies.

Julie Lewis, a staff lawyer for the National School Boards Association in Alexandria, Va., said that the ABA’s claim that zero-tolerance policies do not allow for due process is a misconception. She said state laws require that such policies allow for hearings, and that those hearings are where school officials can consider mitigating circumstances.

The NSBA provides guidelines for districts to write reasonable zero- tolerance policies that comply with state due process laws, and that allow for student hearings, Ms. Lewis said.

But the ABA and some school security experts disagree with that assessment.

Ronald D. Stephens, the executive director of the National School Safety Center in Westlake Village, Calif., believes that while most school discipline policies have a genuinely fair appeals process, zero-tolerance policies do not.

He said that “zero tolerance as a concept is very good, but it needs to be administered within a context of fairness and equity, and there needs to be a due process element.”

What’s more, the ABA and other critics of zero- tolerance policies say there is growing concern that such policies discriminate against minority students, especially African-Americans.

According to data released by the U.S. Department of Education last June, school expulsion rates were higher for black students than for whites. Of the roughly 87,000 students expelled during the 1997-98 school year, about 31 percent were African- Americans, who made up only about 17 percent of enrollment.

Zero-tolerance critics note that many of the policies that have been adopted require expulsion or suspension for a variety of infractions, including possession of weapons, possession of drugs, violent acts, fighting, and threats. The problem, they say, is that many policies do not clearly define what constitutes a weapon, a drug, or a threat.

As a consequence, they argue, schools have used zero- tolerance policies to take excessive disciplinary action against students for such infractions as carrying aspirin on school grounds or possessing plastic toy guns.

In a report that accompanied the ABA resolution, the group cites several recent examples of what it sees as inappropriate uses of zero-tolerance policies. One case was that of two 10-year-old boys in Arlington, Va., who put soapy water in a teacher’s drink. They were suspended and ultimately charged with a felony. Robert G. Schwartz, executive director of the Juvenile Law Center in Philadelphia and the ABA member who encouraged the group to take a critical look at zero-tolerance policies, said he hopes the resolution and report will “remind folks that due process still applies in schools.”