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Challenging Zero Tolerance Policies

Written by:  Peter Galick

Some states have adopted disciplinary policies which characterize certain offenses as being intolerable, and have subjected the offending students to mandatory suspensions.  These policies, which have come to be known as “zero tolerance” policies, seem to function not unlike a mandatory minimum sentence as seen in the penal code context.  The difference is that students have been subjected to suspensions for conduct that is barely serious enough to warrant discipline, let alone a several week suspension.  Many times, suspended students are first offenders and otherwise good students, yet after being punished via suspension, it appears to be difficult for the student to recover academically.  This occurs primarily because the student is not in class, and rarely receives supplemental education while suspended, which becomes a glaring problem when the suspension extends more than a week.  The author notes that these zero tolerance policies have been applied with much more force against minority students, and that they are a significant contributing factor to the “school to prison pipeline” phenomenon seen in many districts.

Since the federal government and many states have not recognized a fundamental right to education, due process challenges have had little success.  While there is a clear disparate effect of zero tolerance policies, equal protection challenges have also had little success because there must be proof of a discriminatory intent along with a discriminatory effect.  This issue is discussed in the article entitled Inadequate Discipline: Challenging Zero Tolerance Policies as Violating State Constitution Education Clauses written by Emily Bloomenthal.  The article proposes that state education clauses, found within their respective state constitutions, present a much more viable challenge to zero tolerance policies.  Even if the policies, which have been found to be supported by the compelling state interest of student safety and similar goals, are not themselves struck down, the author asserts that at the very least students may be able to receive supplementary education while suspended, weakening the blow a suspension deals to a student’s academic progress.  Specifically, the author provides a guide to litigating such a challenge in New York.

What do you think?  Is it appropriate to challenge a disciplinary policy with such a compelling goal?  If it is appropriate, are the courts the proper means to effect change or is this a matter for the legislature to address?  Where does the interest in ensuring that students receive the basic education necessary to becoming contributing citizens overcome the argument that misbehaving students have waived their educational privileges?

For the link to the article this blog discusses, click here.

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