A pair of high school students receives a ten day suspension because the crushed candies the students used to make an anti-drug public service announcement violate a policy prohibiting substances that look like drugs. A twelve-year-old is suspended for four months for writing “I love Alex” in baby blue marker on a school gymnasium wall. Swearing at a teacher gets a high school student expelled. An eighth grader who brings a bottle of Cherry 7-Up mixed with a few drops of grain alcohol to school is kicked out, and sentenced to five months in boot camp as well. A kindergarten tantrum ends with the “perpetrator” in handcuffs, which must be placed around her biceps because her wrists are too small. Elementary school students are arrested and taken to the local jail for talking during an assembly. A fourteen-year-old is sentenced to seven years in prison for pushing a hall monitor.
While these examples may be among the more extreme, they are part of a national trend of harsh “zero tolerance” approaches to school discipline. The term zero tolerance has come to refer to policies that either require automatic punishments for certain infractions, or impose punishments, such as suspensions, expulsions, and arrests, that are disproportionately severe for a student’s particular offense. Zero tolerance is also used to refer to the increasingly prison-like conditions in many schools, where police presence, metal detectors, and arrests have become commonplace. As I will discuss below, research shows that these extreme measures do nothing to address the underlying causes of disruptive behavior and fail to make schools safer. Instead they can have devastating consequences for excessively-disciplined students, who often end up dropping out of school or on trajectories of increasing delinquency.
In this Article, I suggest possible legal challenges to these policies. I argue, specifically, that education clauses in state constitutions, along with courts’ interpretations of these clauses in decisions regarding the constitutionality of state education funding systems, may, in some states, serve as effective grounds for challenging these harmful policies and practices. In Part II, I provide background information about the history of zero tolerance policies, their damaging consequences for students who are suspended, expelled, or arrested, and the disproportionate burden they place on students who are from low-income families, are racial minorities, or have disabilities. I also explore some of the reasons why the use of these problematic policies persists. I next explain in Part III why federal and state constitutional guarantees of equal protection and due process do not provide an adequate basis for addressing the problems of zero tolerance.In Part IV, I discuss the possibility of instead using the education clauses found in every state constitution, as they have been interpreted in education finance litigation, to contest zero tolerance policies.
To illustrate how these clauses might be used to challenge harsh school discipline policies, I focus, in Part V, specifically on the issue of school suspensions in New York, and discuss three examples of how to use standards from education finance litigation to challenge suspensions. I argue that (i) students who are suspended are entitled to an adequate education while suspended; (ii) excessive suspensions are unconstitutional because they increase the likelihood that students will drop out, thus precluding them from receiving the “sound basic education” required by the New York Constitution; and (iii) schools have an affirmative duty under the New York Education Article to address the underlying causes of the inappropriate behavior that leads to suspensions. I also consider the potential remedies attainable through each of these theories. Finally, in Part VI, I discuss the application of this approach in other states and to other discipline policies, and the necessity of engaging the broader community to achieve success.
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