Public school districts across America are evaluating the effectiveness of zero tolerance school discipline policies. Initially developed in the 1980s to combat the war on drugs, zero tolerance policies spread to school districts in the wake of congressional legislation addressing concerns for school safety. In addition to expulsions mandated by the Gun-Free Schools Act of 1994, many states required expulsion for other offenses on school property including drug possession, violence, disruptions, and other anti-social behavior.
Although federal and state drug enforcement agencies eventually abandoned zero tolerance because of its rigidity, zero tolerance attitudes remain ingrained in school districts nationwide. Such policies eliminate consideration of student-specific factors. Thus, violations of these policies are effectively strict liability offenses for which a student is disciplined regardless of the circumstances or the student’s intent. Arguably, this approach results in administrators treating all students the same, thereby eliminating potential liability for discrimination or for allowing dangerous students to remain in school. Proponents maintain that zero tolerance policies deter bad behavior because punishment is “harsh and certain.”
In practice, however, failure to consider a student’s intent, past disciplinary record, or other mitigating circumstances can lead to expulsions or suspensions for minor and unintentional infractions. Zero tolerance policies prevent administrators from fully considering the circumstances of each student, which can produce overly harsh results. Furthermore, there is no proof that these exclusionary zero tolerance policies actually make schools safer or significantly deter misbehavior. In fact, one study links the consequences of zero tolerance policies—increased numbers of suspensions and expulsions—to a variety of negative consequences: low academic performance and engagement, higher drop out rates, and higher likelihood of additional suspensions or expulsions.
This Note surveys the harm of zero tolerance policies raised by numerous scholars over the past fifteen years and focuses on recent legislative efforts to discourage and eliminate these policies. Specifically, it will explore two anti-zero tolerance approaches: (1) Texas’s mandatory requirement that decision makers consider a student’s intent, self-defense, disability, and disciplinary history, and (2) North Carolina, Colorado, and Massachusetts’s permissive approaches, which allow but do not mandate consideration of similar factors. This Note analyzes the proven and prospective effectiveness of these two approaches and presents consequences interested lawmakers should consider. It argues that fusing different parts of the two approaches might lead to more thorough anti-zero tolerance laws. Specifically, it concludes that legislation combining mandatory consideration of intent and contextual circumstances with language explicitly acknowledging the harms of zero tolerance school discipline may be the most effective way to eradicate zero tolerance attitudes.