Zero-Tolerance Discipline in Illinois Public Schools

Given the increased scrutiny of discipline policies and procedures, school

authorities should be aware of the legal concerns raised by "one size fits all"

zero-tolerance discipline policies. This article examines the issue and offers

guidelines for school boards, administrators, and lawyers.

In response to the tragic school shootings nationwide and to governmental

initiatives designed to get tough on serious student misconduct - particularly

when it involves weapons, alcohol, and drugs - more and more public schools are

considering "zero tolerance" policies that impose severe, predetermined

penalties for student misconduct. The federal government has entered the fray

with legislative enactments that purport to strengthen schools' authority to

temporarily exclude or expel students for drug and weapons offenses.

But the use of zero-tolerance disciplinary policies has come under fire from

media and interest groups and become an increasingly common subject of federal

and state litigation. The term "zero tolerance" is cavalierly used to describe

any decision to expel a student, as if there were a generally accepted

definition of the term.

This lack of a common definition is a problem for school officials as they

examine their disciplinary policies and procedures. Governor George Ryan has

acknowledged the problem, saying that "zero tolerance has to be defined on a

statewide basis...it can't mean one thing in one school and one thing in

another."1 Critics

of "zero-tolerance" policies cite as examples students who were suspended or

expelled for conduct that, they contend, did not warrant such serious

punishment. For instance, on March 3, 1998, Boston University's Daily Free

Press had an editorial entitled "Excessive Punishment," which read in

part:

A middle-schooler in Oregon takes a swig of Scope after lunch. An

eighth-grader tries to make his classmates laugh by sucking on an Alka Seltzer

tablet. A 13-year-old has Advil in her backpack rooted out by a drug-sniffing

dog. And a high school student brings an African tribal knife to her world

history class. What do these students have in common? They were each suspended

for their transgressions under zero tolerance policies at their

schools.

The real concern in these instances is not so much the propriety of

"zero-tolerance" policies but whether the punishment has some reasonable

connection to the misconduct in question or school officials have reasonably

determined that intentional misconduct occurred.

It is misguided, though, to suggest that zero-tolerance school policies are

inherently bad - obviously no school "tolerates" drugs, weapons, or serious

misconduct. The real question is whether the district should impose a

predetermined, uniform consequence, usually an extended expulsion, for specified

misconduct - for example, any possession of a weapon or drugs on school grounds,

regardless of the individual circumstances of the offense (this is the

definition of "zero-tolerance policy" for purposes of this article). The debate,

then, is over the automatic nature and severity of such punishments. Is a

singular, preordained punishment for any category of offense fair and

lawful?

II. The Decatur Incident

Much of the current debate over zero-tolerance policies in Illinois arises

not so much from thoughtful analysis as from the national media frenzy over the

Decatur School Board's expulsions of several students for their roles in a fight

at a football game. The melee was captured on home video and showed one group of

students attacking two other students. The tape was subsequently broadcast to a

national audience.

The principal issues ultimately were more political than legal, with the

Decatur incident receiving national scrutiny when the Rev. Jesse Jackson

intervened on behalf of the students. In the litigation that followed in

Fuller v Decatur Public School Board of Education,2 the

students contended that the board had violated their constitutional rights by

relying on a zero-tolerance policy, allegedly punishing them as a group, denying

them due process, and improperly basing the decision on race.

The students argued that they were stereotyped as gang members and "racially

profiled" by the board. They also claimed that because the fight was short and

no guns, knives, or drugs were involved, expulsion was too severe a penalty.

This contention in particular - i.e., that misconduct is not truly serious

unless it involves drugs, guns or knives - suggested a fundamental

misunderstanding of public schools' authority to preserve order and safety by

imposing discipline that the local board deems appropriate and that the Illinois

legislature has authorized.

The Fuller court found that the students failed to show that the board

had adopted or practiced a "zero-tolerance policy." While the board had adopted

a resolution declaring a "no-tolerance position on school violence," the court

determined that the resolution had no impact on the students being disciplined.

The court found the "no-tolerance" resolution to be more of a political or

philosophical statement against criminal activity in schools than a formal

policy on student discipline.3 The

court determined that the board based its decision to expel on sufficient

evidence of serious misconduct and that local school board disciplinary

decisions are entitled to substantial deference by the courts.

Section 10-22.6...