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Legal Issues
Zero Tolerance Policies in the Wake of Columbine
Due Process in Schools
One of the most serious effects of the Columbine shooting was the speed at which minor offenses snowballed into serious crimes. Incidents that in the past would have received a referral or detention are now resulting in suspension, expulsion, or even criminal charges that are handled by law enforcement. In the interest of getting rid of "troublemakers" as quickly as possible or addressing the perceived threat of violence, school administrators inevitably end up violating the "due process" rights of students more often than not. The Due Process Clause of the Fourteenth Amendment gives students the right to receive a fair hearing (only when they are suspended for 10 or more days) and to have adequate notice of the type of conduct that is prohibited so that they're not subjected to "irrational punishment." (In situations involving suspensions of less the 10 days, the appropriate notice and opportunity for the child to share his/her side of the story can be informal.)
When it comes to Zero Tolerance polices, however, the law is an inadequate safeguard. Generally speaking if a student is accused of doing something wrong and is about to be suspended, he/she has the right to be notified of the pending charges, and the right to tell their side of the story. The punishment should not be more serious than the crime, and students should not be held responsible for breaking rules they had no reasonable way of knowing about. Only if a student faces a more serious punishment – ten or more days of suspension for example – is he/she entitled to a more formal hearing.
There are, however, legal loopholes. In the State of Florida for example, many schools avoid having to hold hearings by opting instead for in-school suspensions that allow for transfers to alternative schools. This common procedure is often chosen in lieu of expulsion, and the school has to provide little justification to remove the student. Additionally the term 'hearing' isn't clearly defined in school rules and procedures, which means that a student's hearing can essentially consist of coercive interrogation by administrators. Many Zero Tolerance polices adopted by school boards across the country dictate that administrators must report certain incidents to law enforcement. This unfortunately leads to student interrogation by law enforcement or school resource officers without parental notification, which isn't a requirement either in many school board policies.
The end result is that the information obtained during these interrogations can be used to bring criminal charges against the student, allowing law enforcement officers to circumvent usual due process procedures – such as Miranda warnings – that would have been afforded to the student had the incident occurred outside of school.
Student Speech vs. Zero Tolerance Policies
In Tinker vs. Des Moines Independent School Dist., 393 U.S. 503 (1969), the Supreme Court found that public school students do not "shed their constitutional rights at the school house gate." However in the post-Columbine era, it is becoming increasingly difficult to rely on legal safeguards to protect the speech rights of students. Zero Tolerance policies are brutal in that they severely punish students for minor offenses ranging from writing offensive poetry to wearing controversial clothing. In order to suspend a student for disruptive speech, the school must establish that there is a "material and substantial" disruption of classwork or that it invades the rights of others.
Tinker held that the disruption of the educational process must be "substantial" and not simply "to avoid 'discomfort' or 'unpleasantness.'" What constitutes a material and substantial disruption of the educational process is often a subject of controversy and usually left to the discretion of a school administrator.
But, as stated previously, the principal's attitude toward student misbehavior impact disciplinary procedures and outcomes. School administrators have much more disciplinary control over cases involving on-campus student expression than they do over off-campus speech. These cases are often resolved on a case- by-case basis. The undefined arena of Internet speech further blurs the line between what is considered on- versus off- campus speech.
The Internet is becoming more accessible to students, and more students using this highly accessible media to express themselves. On the other hand, because of the recent developments of constitutional law as it applies to the Internet, administrators are unclear about the limits of free speech over the Internet. Several recent cases illustrate the problems students, parents and school officials face in this new arena. In Emmett v. Kent School District No. 415 , 92 F. Supp.2d 1088 (W.D. Wa. 2000) a student's suspension for creating mock obituaries on a website created entirely at home was overturned partly on the basis of the " out of school nature of the speech." In a similar case Beussink v. Woodland R-IV School District, 30 F. Supp. 2d 1175 ( E.D. Mo. 1998), the court prevented the school district from suspending a student for creating a webpage on his home computer, and additionally ruled that school officials couldn't prohibit the student from reposting the website. In Pennsylvania, a student at Franklin Regional High School was suspended for creating and e-mailing a "Top Ten List" of critical comments about the school's athletic director. The list was created entirely at home and was brought onto campus by another student. The judge in this case also noted the out-of-school nature of the speech and that the school had failed to prove that there was a substantial disruption of school operations. Tinker established that the disruption of school operations must be substantial and not simply "the mere desire to avoid 'discomfort' or 'unpleasantness'. In another off-campus speech case, J.S., a Minor v. Bethlehem Area School District, 757 A. 2d412(Pa. Commw. C. 2000), the court found that the level of disruption was substantial enough to warrant the expulsion of a student whose website was offensive enough to cause the target of the derogatory comments and graphics to take a leave of absence. It is clear from these cases that off-campus speech is not to be treated the same way as on-campus speech. However, the courts have varied in their definitions of "substantial disruption," and because of the differences in educational philosophies of school principals the punishments also vary for such offense.
