Zero Tolerance Policies for School Districts

1. Beyond
Zero Tolerance Policies
Erin H. Walz
Udall Shumway, PLC

2. What is Zero Tolerance?
It started as:
Consistently enforced suspension and
expulsion policies in response to weapons,
drugs and violent acts in the school setting.
Now:
A discipline policy that assigns explicit,
predetermined punishments to specific
violations of school rules, regardless of the
situation or context of the behavior.

3. The Beginning of Zero Tolerance
• Zero Tolerance policies began in
1994 when the federal government
initiated the Gun-Free Schools Act.
• This Act was created in reaction to
the school shootings and rise in
violent juvenile crime of the mid-
90s.
• The Act required schools to expel
students for one year if they
brought fire arms and/or illegal
drugs to school.

4. Adoption of Zero Tolerance
• Congress required all schools to adopt the
zero tolerance policy.
• If a school refused to adopt zero
tolerance, the school would no longer
receive federal funding.
• Now all 50 states have adopted zero
tolerance policies, and they are standard
operating procedure in the nation’s
109,000 public schools.

5. Arizona Law
A.R.S. §15-841
G. A school district or charter school shall expel from school
for a period of not less than one year a pupil who is
determined to have brought a firearm to a school … except
that the school district or charter school may modify this
expulsion requirement for a pupil on a case by case basis. …
H. A school district or charter school shall expel from school
for at least one year a pupil who is determined to have
threatened an educational institution … except that the
school district or charter school may modify this expulsion
requirement for a pupil on a case by case basis…

6. Expansion
• Since its creation, state legislatures and local
school boards have expanded the zero
tolerance policy.
• Zero tolerance policies in schools now
frequently include alcohol, tobacco, drugs,
fighting, sexual offenses and
insubordination.

7. The Effects of Zero Tolerance
• In recent years, only 5% of serious
disciplinary actions (nationally) involved
possession of a weapon.
• 43% of expulsions and out-of-school
suspensions lasting a week or longer
were for insubordination.

8. The Effects of Zero Tolerance
• Link between zero tolerance standard
punishments of suspension and expulsion and
negative outcomes
– Increases likelihood of subsequent suspension or
expulsion
– Less likely to graduate on time and are at higher risk
to drop out
– Higher suspension rates found to be related to
lower school-wide academic achievement

9. The Effects of Zero Tolerance
• Inequitable in application – a student
who is bullied and retaliates subject to
the same punishment as the bully.

10. Legal Interpretation
• Arizona school strip-searched 13 year old student
under zero-tolerance policy for drugs, looking for
ibuprofen. U.S. Supreme Court ruled search was a
violation of student’s constitutional rights.
• School district must provide significant reasons for
denying alternative schooling or tutoring to
students suspended for misbehavior, according to
North Carolina Supreme Court.

11. Legal Interpretation
• 6th Circuit Court of Appeals held that expelling
a student for possession of a knife, which
student did not know was in his car, was not
rationally related to any legitimate state
interest.

12. Legal Interpretation
• A student confiscated a knife from another
student who had threatened him with it. Before
student could go to office and turn it in, assistant
principal learned of it and obtained from student.
Per school’s zero tolerance policy, student
disciplined for “possessing” weapon. Suspended
for one year.

13. Legal Interpretation
• Massachusetts federal court ruled that
punishment was “grossly disproportionate” to
student’s conduct that it was not rationally
related to any legitimate state purpose and thus
violated constitutional guarantee of substantive
due process.

14. Zero Tolerance =
Zero Due Process?
• 5th Amendment – student’s rights:
– Notice: student informed of the specific
information as to charges and the evidence
supporting the charges, and
– Opportunity to be heard: student given a
chance to tell his or her side of the story.

15. Zero Tolerance =
Zero Due Process?
• Students facing long-term suspensions
are entitled to a hearing. A hearing
where the outcome is predetermined
does not satisfy due process.
– In Massachusetts case, student was
reinstated and record expunged. School
district agreed to change its policy and
decide future cases on individual facts.

16. Zero Tolerance and Discrimination
• Minorities are expelled and suspended more
often, which shows a tendency toward
discrimination.
• Among middle school age students, black
students are suspended almost 4x more often
than white, and Latino students 2x more often.

17. Zero Tolerance and Discrimination
• Frequent suspension of minorities
contributes to the achievement gap and
starts the chain of events that leads to kids
dropping out.
• High school students with disabilities are 3x
more likely to receive an out-of-school
suspension that non-disabled peers.

18. Zero Tolerance and Discrimination
• Department of Education’s Office of Civil
Rights (OCR) received 693 complaints
alleging discrimination in school discipline
from 2013 to 4/16/14.
• OCR is presently investigating 131 of those
discipline complaints

19. OCR Investigations
• Intentional discrimination: Discipline policy is
neutral on its face, but school applies it in a
discriminatory manner or school permits ad hoc
discipline of students in areas not fully addressed
by policy.
– Students of different race are disciplined differently for
the same offense with comparable circumstances.
– Neutral policy is selectively enforced against students
of certain races.

20. OCR Investigations
• Disparate Impact: Neutral discipline policy has an
unjustified effect of discriminating against
students on the basis of race.
– Has discipline policy resulted in adverse impact on
students of a particular race?
– Is the discipline policy necessary to meet an important
educational goal?
– Are there comparably effective alternative policies or
practices that would meet the school’s educational
goal with less adverse impact?

21. But Do They Work?
• No evidence that zero tolerance policies reduce school
violence.
• Research shows that rates of suspension and expulsion
appear unrelated to overall school success for schools
with similar characteristics, levels of funding and
student populations.
• Often the students are repeat offenders, suggesting
that the at-risk students are not getting the message
of deterrence.
• The long term result of zero tolerance and frequent
suspension is students dropping out of school.

22. Real Life Situations
• A 10 year old girl was suspended for sexual
harassment when she repeatedly asked a little
boy in her class if he liked her.
• Student was expelled for pointing a piece of
breaded chicken at a teacher during lunch and
pretending it was a gun.
• Teenager shooting peas with a straw in
cafeteria expelled for weapons violation.

23. Real Life Situations
• Arizona kindergartner given sexual conduct
referral for pulling his pants down on the
playground.
• A hunting knife in a sports bag in a
student’s car resulted in expulsion for
weapons violation.
• 12 year old arrested for doodling on her desk in
erasable marker.

24. Real Life Situations
• A 10 year old girl received a week detention for
eating a Jolly Rancher candy in the cafeteria.
• 6 year old given detention for having a Lego gun
on the school bus, and also wrote a letter of
apology.
• 7 year old chewed Pop Tart into shape of gun and
said “bang bang” received 2 day suspension.
• 5 year old accused of making terroristic threats
for talking to fellow kindergarteners about
shooting her Hello Kitty bubble gun.

25. Times they are a changing…
• Public opinion on has changed dramatically.
– TIME, 5/22/12: Do ‘Zero Tolerance’ School Discipline
Policies Go Too Far?
– December 2012: Senate Judiciary Subcommittee on
the Constitution, Civil Rights and Human Rights held
an informational hearing on “Ending the School to
Prison Pipeline”
– New York Times, 12/2/13: Seeing the Toll, Schools
Revise Zero Tolerance
– New York Times, 1/5/14: Zero Tolerance,
Reconsidered (Editorial)

26. Times they are a changing…
– Arizona Republic, March 2014: article on 10
year old boy in Ohio suspended for 3 days for
making a gun with his hand and “pointing” it
at another student
– Arizona Republic, August 2014: two Letters to
the Editor and one article on sexual
misconduct referral for kindergartner

27. OCR Weighs In
U.S. Dept. of Justice and U.S Dept. of Education January
2014 Guidance Package on School Climate and
Discipline
– Focuses on racial and ethnic disparity in school discipline.
– School to Prison Pipeline.
– HOT BUTTON ISSUE FOR OCR INVESTIGATIONS!
– Alternatives to exclusionary discipline while encouraging
new emphasis on reducing disproportionality for students
of color and students with disabilities.

28. OCR’s Guiding Principles
Guiding Principle 1: Climate and Prevention
6 Action Steps aimed at creative, positive school climates
Guiding Principle 2: Clear, Appropriate and Consistent
Expectations and Consequences
5 Action Steps aimed at expectations and consequences,
including
“Remove students from the classroom only as a last resort”
Guiding Principle 3: Equity and Continuous
Improvement
2 Action Steps aimed at training, data and involvement of entire
community

29. OCR’s Guiding Principle 2:
Clear, Appropriate and Consistent
Expectations and Consequences
ACTION STEPS:
(1)Set high expectations for behavior and adopt an
instructional approach to school discipline
– Expectations are communicated to students and families
regularly.
– Interventions and/or consequences to re-teach
expectations.
– Help students develop new behavior and positive
strategies to avoid conflicts.

30. OCR’s Guiding Principle 2:
Clear, Appropriate and Consistent
Expectations and Consequences
(2)Involve families, students, and school
personnel in the development and
implementation of discipline policies or codes
of conduct, and communicate those policies
regularly and clearly.

31. OCR’s Guiding Principle 2:
Clear, Appropriate and Consistent
Expectations and Consequences
– Provide policies and code of conduct in format that is
easy to understand and TRANSLATED as necessary.
– Put protocols in place for when parents are notified.
– Clearly designate who has authority to identify
discipline violations and assign penalties.
– Ensure written discipline policy distinguishes between
students who violate discipline policy for first time and
students who do so repeatedly.

32. OCR’s Guiding Principle 2:
Clear, Appropriate and Consistent
Expectations and Consequences
(3)Ensure that clear, developmentally
appropriate, and proportional consequences
apply for misbehavior.

33. OCR’s Guiding Principle 2:
Clear, Appropriate and Consistent
Expectations and Consequences
– Written policies should define offense categories and
base discipline on specific and objective criteria.
– Create a continuum of developmentally appropriate
consequences for escalating student behavior.
– Allows administrators/teachers to choose appropriate
consequence based on individual and facts.
– Consequences should be in proportion to the
misbehavior and the student.

34. OCR’s Guiding Principle 2:
Clear, Appropriate and Consistent
Expectations and Consequences
(4) Create policies that include appropriate procedures for
students with disabilities and due process for all
students
IDEA
Remember:
– OCR will investigate if discipline policies disproportionately impact
special needs students
– Parents may bring due process claim for violation of IDEA

35. OCR’s Guiding Principle 2:
Clear, Appropriate and Consistent
Expectations and
(5) Remove students from the classroom only as a last
resort, ensure that any alternative settings provides
students with academic instruction, and return
students to their regular class as soon as possible.

36. OCR’s Guiding Principle 2:
Clear, Appropriate and Consistent
Expectations and
– Need to remove students diminishes as school climate
improves.
– Emphasis on behavioral interventions and tiered
supports.
– Reserve for serious infractions spelled out in discipline
policies and student code of conduct.
– Gun Free Schools Act only mandates expulsion for
firearms at school, and even then allows for
modification on case-by-case basis.
– Provide instruction if student must be removed and
put in alternative setting.

37. Alternatives to Zero Tolerance
Positive Behavior Interventions and Supports (PBIS)
•Expectations – clearly and positively designed
•Training and teaching of behavioral expectations
taught for all students and staff
•Systems for acknowledging appropriate behaviors

38. Alternatives to Zero Tolerance
• Systems for proactively correcting
behavioral errors
• Systems for collecting and using data to
make decisions regarding school‐wide
behavior
• Monitoring and timely adaptations to the
program if warranted

39. Alternatives to Zero Tolerance
Safe and Supportive Schools (S3) Approach
• Effective Thinking – using data and research to lead to
solutions. Taking a positive not a deficit approach.
• Effective Action – implementing evidence‐based or
research‐based programs or processes to solve the
problems or issues identified by Effective Thinking.

40. Alternatives to Zero Tolerance
• Effective Relationships – supporting the
relationships that will enhance the climate and be
the “glue” that keeps the Actions moving
forward.
• Effective Accomplishment – evaluating success in
multiple ways and at many times in the process
and feeding this data into the Effective Thinking
process

41. Schools Making Changes
Los Angeles Unified School District
•Second largest school district in U.S.
•In 2012, LA Unified stopped issuing citations for truancy, instead
referring students to youth centers for counseling and support.
•In 2013, it barred suspensions for “willful defiance.”
•August 2014, students involved in non‐serious altercations or
accused of petty thefts, minor vandalism and similar infractions
will be referred to counseling and administrative discipline rather
than being sent to juvenile court.
– District has added 5 restorative justice advisers and 25
restorative justice teacher advisers.

42. Schools Making Changes
Phoenix Union High School District
•16 high schools and 27,000 students
•80% of students/families living at poverty level
•As of December 2013, District spent 10% of its budget
toward providing students with counseling and other
support programs and interventions.
•Has never endorsed a zero tolerance policy
•No expulsions in preceding 2 years.

43. Into the Future…
• “Zero Tolerance” must be removed from school
personnel vocabulary and from school policies.
– It has become a fall back position for all sorts of
misconduct.
– Limit in school district policies to what is mandated
by law – weapons violations.
– Replace with judgment and discretion.
– Replace with PBIS or comparable program to change
school climate.

44. Disclaimer
This presentation and related handout is for
informational purposes only and should not
be used in place of legal advice.

45. Erin H. Walz
UDALL SHUMWAY PLC
1138 North Alma School Road, Suite 101
Mesa, Arizona 85201
ehw@udallshumway.com | 480-461-5379
www.udallshumway.com