Ending Zero Tolerance

The Crisis of Absolute School Discipline

Derek W. Black

• Publisher: NYU Press
• Year: 2016
• ISBN:
  9781479886081
• Topic: Law
• Subtopic: Public Law
• Index: Law

Ending Zero Tolerance answers the calls of grassroots communities pressing for integration and increased education funding with a complete rethinking of school discipline. In the era of zero tolerance, we are flooded with stories about schools issuing draconian punishments for relatively innocent behavior. One student was suspended for chewing a Pop-Tart into the shape of a gun. Another was expelled for cursing on social media from home. Suspension and expulsion rates have doubled over the past three decades as zero tolerance policies have become the normal response to a host of minor infractions that extend well beyond just drugs and weapons. Students from all demographic groups have suffered, but minority and special needs students have suffered the most. On average, middle and high schools suspend one out of four African American students at least once a year.
The effects of these policies are devastating. Just one suspension in the ninth grade doubles the likelihood that a student will drop out. Fifty percent of students who drop out are subsequently unemployed. Eighty percent of prisoners are high school drop outs. The risks associated with suspension and expulsion are so high that, as a practical matter, they amount to educational death penalties, not behavioral correction tools. Most important, punitive discipline policies undermine the quality of education that innocent bystanders receive as well—the exact opposite of what schools intend. Derek Black, a former attorney with the Lawyers’ Committee for Civil Rights Under Law, weaves stories about individual students, lessons from social science, and the outcomes of courts cases to unearth a shockingly irrational system of punishment. While schools and legislatures have proven unable and unwilling to amend their failing policies, Ending Zero Tolerance argues for constitutional protections to check abuses in school discipline and lays out theories by which courts should re-engage to enforce students’ rights and support broader reforms.

Part I

The Making of an Educational Crisis

[ 1 ]

From Friends to Enemies

Today, courts and society continue to repeat the mantra that schools are owed deference in administering discipline. This idea is grounded in the notion that discipline is a teaching tool and schools act in students’ best interests in administering it. While these notions may have been accurate for much of our nation’s history, in many instances, they no longer are. The past half century has produced a complete transformation of the relationship between students and their schools. This transformation explains why we have arrived at the current crisis in discipline. Courts’ failure to acknowledge this transformation, likewise, helps explain why courts have refused to intervene as the crisis unfolded right before them. The following sections briefly trace this historical transformation.

Benevolent Disciplinarians

Traditionally, parents’ right to discipline and control their children without the interference of the state and judiciary has gone without question. Schools’ disciplinary authority and courts’ deference toward schools in the exercise of discipline stem from the idea that schools act in the place of parents during the day. In other words, they are substitute or quasi-parents. As such, the law and society presume that schools act with the best interests of students in mind. In addition, discipline itself is a form of education that schools are particularly well suited to deliver.

This theory of school disciplinary authority also has deep historical roots, dating back to English common law. Tort law in England first articulated the concept as “in loco parentis,” which in Latin means “in the place of a parent.” When parents turn their children over to schools, principals and teachers become the temporary guardians and caretakers of the children. This legal relationship creates both duties and discretion for school officials. In terms of duties, schools, like parents, should supervise, care for, and educate students during the day. But with these soft duties come the far more legally important discretion and immunity that a parent would enjoy in carrying out these duties.

Unlike any other state or private actor who might interact with children, the concept of in loco parentis shields schools from almost all legal liability. Citing the concept, courts have traditionally refused to second-guess how schools supervise and discipline students, even when parents themselves seek to challenge how their children were treated during the school day. Because parents are said to have delegated their authority to schools during the day, they cannot complain about the exercise of that authority, save for the most egregious circumstances imaginable. Gordon Gee and David Sperry offer a less technical explanation: “This legal fiction was initially necessary to protect teachers in their relationship with students, and to give parameters and certainty to the powers that teachers could wield over students.”1

One of the most notable early applications of in loco parentis in the United States was in State v. Pendergrass2 in 1837. The case involved a North Carolina schoolmaster who had whipped a six- or seven-year-old girl with a switch and left marks on her body. The schoolmaster also hit the girl with what the court characterized as a “larger instrument.” That larger instrument left marks and bruises on her arm and her neck. The state brought criminal charges against the schoolmaster, and a jury convicted him of assault and battery.

The North Carolina Supreme Court, however, reversed on appeal. It held that the law grants schoolmasters and teachers a power to correct students “analogous to that which belongs to parents, and the authority of the teacher is regarded as a delegation of parental authority.”3 The court emphasized that the discharge of this authority is a “sacred dut[y]” necessary to ensure that children become “useful and virtuous members of society.” Moreover, “this duty cannot be effectually performed without the ability to command obedience, to control stubbornness, to quicken diligence, and to reform bad habits; and to enable him to exercise this salutary sway, he is armed with the power to administer moderate correction, when he shall believe it to be just and necessary.”4 Only immoderate punishment—which the court defined as disfigurement or serious permanent injury to life, limbs, or health—might go beyond the school’s authority.5 And the court expressed no interest in closely policing the line between moderate and immoderate punishment, writing that punishment, in its various forms, is “necessary for the reformation of the child” and benefits the student in the long run.6

Conceptualizing discipline as beneficial to the child, the court reasoned that schools, not judges, are best suited to determine appropriate punishment. The schoolmaster “is the judge when correction is required, and of the degree of correction necessary; and like all others intrusted with a discretion, he cannot be made penally responsible for error of judgment, but only for wickedness of purpose. . . . His judgment must be presumed correct, because he is the judge.”7 Only the schoolmaster knows the details of the student’s past and present behavior and character and whether prior milder correction has been effective.8 No matter “how[] severe the pain inflicted” or how “disproportionate to the alleged negligence or offence of so young and tender a child” the punishment might seem,9 the court held that school officials were immune from suit, save those instances when they “grossly abuse” their powers and act with malice to cause lasting injury.

This concept of school authority and presumptive benevolence dominated both state and federal law for the next century and a half. The Supreme Court summarized that history in upholding schools’ authority to corporally punish students in 1977. It wrote,

At common law a single principle has governed the use of corporal punishment since before the American Revolution: Teachers may impose reasonable but not excessive force to discipline a child. Blackstone[, for instance,] . . . did not regard it a “corporal insult” for a teacher to inflict “moderate correction” on a child in his care. To the extent that force was “necessary to answer the purposes for which (the teacher) is employed,” Blackstone viewed it as “justifiable or lawful.” The basic doctrine has not changed. The prevalent rule in this country today privileges such force as a teacher or administrator “reasonably believes to be necessary for (the child’s) proper control, training, or education.” To the extent that the force is excessive or unreasonable, the educator in virtually all States is subject to possible civil and criminal liability.10

Starting in the 1970s, however, historical events began to prove false the theory of schools as benevolent parental figures acting in the best interests of students, even when they punish them. The first series of events related to school desegregation and the high rates of discipline that followed for African American students in integrated schools. Data, reports, and personal stories all suggested that some school officials were misusing their discretion, sometimes for ulterior purposes. Some were summarily suspending and expelling students with little or no thought. Others were doing so for discriminatory reasons.

Discipline as Resistance to Desegregation

In 1954, in Brown v. Board of Education, the Supreme Court declared school segregation unconstitutional. The political resistance to the holding was swift and fierce. For the next ten years, the resistance was sufficiently powerful to prevent school integration in all but the rarest of circumstances. By 1964, only about 1 percent of African Americans students had enrolled in integrated schools. Not until the late 1960s and early 1970s did school desegregation begin in earnest in most places. By then, Congress had passed the Civil Rights Act of 1964, prohibiting discrimination in federally funded programs. And, in 1968, in Green v. County School Board of New Kent, the Court held that the time for “all deliberate speed” in desegregating schools had come to an end.

Together, the Court and Congress made it clear that integration could not be stopped. As the Court ordered in Green, the time had come for districts to implement integration plans that “promise[] realistically to work and promise[] realistically to work now” to eliminate the “vestiges” of discrimination “root and branch.”11 The most pertinent vestiges to eliminate were racial disparities in student assignment to schools, faculty, staff, facilities, transportation, and extracurricular activities. Beyond those high-level issues, the Court did not spell out what would happen within those integrated school buildings. This gave opponents of integration an opening. If they could not prevent the physical integration of schools, they could resist integration indirectly within the schools.

One of the primary means of indirectly resisting or coping with integration was to treat African American students differently. The biggest concern for many whites was simply that their children would have to interact with African American students socially and in the classroom. They feared African Americans would disrupt the classroom learning environment by misbehaving, act violently toward whites, or simply slow others’ learning down because they were not smart enough to keep up. Thus, many whites demanded that schools keep African American students “in line.” As a practical matter, this meant excluding those who were perceived to be problems and scaring the rest straight. Many schools responded accordingly with unflinching stances toward African American students and their perceived behavioral problems. As a result, many individual African American children bore the brunt of society’s larger racial tensions on a daily basis through school discipline.

Douglass Reed explored these dynamics and the roots of harsh disciplinary stances toward African American students during the initial period of desegregation in a case study of Alexandria, Virginia. In 1970, the Alexandria School District was on the cutting-edge of integration. Armed with the Civil Rights Act of 1964, the Court’s decision in Green, and the demands of the local African American community, the U.S. Department of Health, Education, and Welfare demanded that the district take more aggressive steps to desegregate. District officials believed that they were already taking the appropriate steps toward desegregation. The white community believed anything more would be too much too quick. Rather than explicitly oppose integration, the district and the white community adopted the “politics of order.”12

The district and white community articulated African American students’ discipline, or the lack thereof, as the reason why desegregation needed to slow. Integrating African American students into white schools too quickly would lead to the loss of educational quality and order. As one white community leader asserted, “What the whole thing boils down to . . . is that they do not have enough discipline. . . . Everything will fall into place if we could get discipline back into the schools.”13 This issue of discipline, Reed found, “frequently devolved into arguments about how best to control black children.”14 This then produced negative reactions from African American students, who rightly felt disrespected and discriminated against. Some pushed back and confronted whites who sought to control and denigrate them.

Teachers feared that they were unprepared to deal with integrated classrooms and that the racial unrest could spiral out of control, so they bargained “for greater powers to exclude disruptive students from their classes.”15 Early in 1971, the district’s superintendent announced that the district had reached a new labor contract with teachers that granted them “the unilateral right to expel a student from his or her classroom, permanently.”16 Local reporting at the time claimed that such a power was unprecedented,17 although it is unclear whether Alexandria teachers actually excluded large numbers of students. In comparison to other districts across the state and country, however, the transition to integrated schools was relatively smooth in Alexandria. The opposition to desegregation and the politics of order eased over the next two years, and in 1973, the school board voted to adopt a plan that largely conceded to demands from the local NAACP and the federal court.

The transition in other districts was far more difficult and placed more extended pressure on school discipline practices. In those districts, the disciplinary consequences for African American students were systematic. For instance, in Hawkins v. Coleman, a school-desegregation case in Dallas, Texas, from the early 1970s, the court detailed significant disparities in discipline. Explaining why these disparities were occurring, plaintiffs’ lead expert witnesses testified that the discipline rules were facially neutral, but school personnel applied them in a racially biased way. In particular, “there was a substantial reliance upon non-violent ‘offenses’ as a justification for suspension.”18 These offenses were “highly susceptible [to] selective perception [and] had selective prosecution.”19

A second expert testified that the district’s disparate discipline practices “fit into an existing national pattern of race discrimination in that the [Dallas Independent School District] is a ‘white controlled institution’ with ‘institutional racism’ existing in the operation of its discipline procedures.”20 The standard operating procedures of these institutions “are prejudiced against, derogatory to, or unresponsive to the needs of” African Americans.21 “Conduct by black students that would not be ‘unusual’ or ‘offensive’ in a black environment becomes to many teachers ‘disruptive’ or ‘suspendable conduct.’ To teachers unfamiliar with Blacks, this conduct, that is non-violent and characteristic of the black race, stands out and becomes thereby subject to selective prosecution.”22 Even the school district’s superintendent, when asked for his explanation of why African Americans were suspended at higher rates than whites, bluntly testified, “Well, we are a White controlled institution, institutional racism, racism among individuals.”23

The district court agreed with the foregoing assessments. “If there is to be progress in Dallas towards removing institutional racism there must be a change in attitude of both the School Board and the officials.” The court chided local officials for their extensive efforts to subvert desegregation at every turn and to incite public opinion to support this subversion. The remedy was not just to adopt new policies. An effective remedy must be directed at “materially lessening ‘white institutional racism’ in the [district].”24

Dallas was not unique. National studies found that, during this period of initial desegregation, suspension rates for African Americans rose to two to three times the rate for whites.25 African American students were also more likely to receive multiple, longer, and harsher suspensions, as well as to be suspended at a younger age.26 Researchers found that these disparities stemmed from a variety of factors, including ambiguous rules affording teachers significant discretion, bias in carrying out discretion,...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Introduction
• Part I. The Making of an Educational Crisis
• Part II. Courts’ Role in Ending the Crisis
• Notes
• Index
• About the Author