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4/14/14

A zero tolerance policy is one which requires a severe penalty to be imposed which is unbending in its imposition, and often does not give allowance for extenuating circumstances. It is, as it states, completely intolerant of the behavior for which it requires consequences, no matter what. In their article on zero tolerance for Phi Delta Kappan, Russ Skiba and Reece Peterson define zero tolerance as "policies that punish all offenses severely, no matter how minor"(2).

According to Skiba and Peterson, the term zero tolerance evolved from federal and state drug enforcement policies in the 1980s. In the late 1980s, the concept began to catch on in schools. In 1989 school districts in Orange County, California, and Louisville, Kentucky, introduced zero-tolerance policies that mandated expulsion for possession of drugs or participation in gang-related activity. In New York, the superintendent of the Yonkers public schools proposed a zero tolerance program which included restricted access to schools, a ban on hats, immediate suspension for any school disruption, and increased use of law enforcement. By 1993, school boards across the nation were adopting zero tolerance policies which not only included drugs and weapons but also tobacco-related offenses and school disruption.

In 1994, Congress passed the Gun-Free Schools Act, bringing zero tolerance school policies to a national level. This law requires states that receive federal funds to expel any student who brings a weapon to school for at least one calendar year. It also requires the student's referral to the juvenile justice system. One flexible aspect of this law is that it allows one-year expulsions to be modified by the chief administrator of each local school district on a case-by-case basis (First 8; Skiba and Peterson 2).

Two examples of the application of zero tolerance policies from a high school in suburban Harrisburg are the following. In the first instance, an honor roll student, a senior, began to act in a bizarre manner in the cafeteria during lunch one day. He was taken to the nurse, who suspected he had taken a hallucinogen. The dean of students was called on the scene. The young man admitted to the dean that he had bought several "hits" of LSD at the local mall the night before and had taken one just before lunch. The young man, who up until that point had been a good citizen of the school, was suspended from school, given a hearing with his parents and district administrators, and required to complete the rest of the school year in the district's alternative education program (a restrictive environment within the school district where students with severe discipline problems were sent to continue their education away from the regular student body). Two disadvantages to this student were his enrollment in high academic specialty courses, which could not be delivered in the alternative program, and his placement among students far more criminal than he. His placement jeopardized his acceptance at a first-rate college, for which he would have otherwise been an excellent candidate. The second example is the case of a female student, a high school junior, who prepared "Jello shooters" (Jello cubes made with alcohol) to take to a gymnastic competition where she was scheduled to be a participant. The student brought the Jello shooters to school on Friday, asked a teacher to store them in a school refrigerator, then took them to the hotel where the team was staying during the meet and proceeded to offer them to others at the after-meet party. This student, too, was typically a good citizen of the school. Nevertheless, she was suspended, a hearing before central administrators was set, and the outcome was her being required to attend the district's alternative education program for the remainder of the school year.

Similar cases have occurred involving so-called weapons. Recently, in a York County school district a kindergarten boy was suspended for five days because he had brought a nail clipper to school, and this item was construed as a weapon by school officials. The incident was widely publicized by the local media, and the boy's parents contested the fairness of the suspension, protesting that the boy was deprived of five days of his education and he didn't even understand what he had done wrong.

In each of these cases, a harsh penalty was imposed without consideration of circumstances such as intent, seriousness of the infraction, endangerment of others, past record, and suitability for the consequences for the student. The central controversy this paper will explore is the question of appropriateness of zero tolerance policies; however, other issues surface as well: are they fair to the school administrators who are asked to impose them? Are they proactive or reactive? Are they a deterrent or are they Draconian measures which achieve no real purpose? Will they make schools safer?

The first question to be answered when analyzing the controversy is whether or not the dispute is fundamental. Would the parties involved take opposite sides when faced with the yes-no question: should school districts use zero tolerance policies to deal with serious disciplinary infractions? In a recent point-counterpoint column in the Harvard Education Letter, Joan First and Charles Patrick Ewing did just that-took opposite sides on the issue of zero tolerance policies. Their position papers showed that this dispute is fundamental if inappropriate application of zero tolerance is eliminated. Many who support zero tolerance policies believe that the following examples show their misapplication, cited by Joan First in a column against zero tolerance policies for the Harvard Education Letter:

The term zero tolerance is, in itself, a slogan. On the surface, who wants any tolerance of drugs, alcohol, or violence in our schools? Zero tolerance shouts toughness and action. It suggests that no criminal will be able to avoid a sentence because of a loophole. It hints of a higher quality of life for law-abiding citizens, free from the threat of criminals. Without knowing its application, most would respond heartily that they do not want any of these evils to be tolerated in our public schools. Interestingly, the term zero tolerance is also oxymoronic. To tolerate something is to allow it to exist, to not interfere, to "live and let live." Zero, of course, means none. So the terms contradict each other, creating an oxymoron. Zero tolerance laws state that they will not allow the evil to exist at all in any way, shape or form. The institution will eradicate it. To get to real understanding of the issue, the disputants must peel away the slogan, the oxymoron, the connotations, the emotional appeals and examine the actual policies themselves. All of these aspects contain problems of understanding and fact.

In their argument against zero tolerance policies, Skiba and Peterson defend their position with the authority of facts. They use studies of types of discipline incidents in schools, selected specific cases of suspension and expulsion (see Appendix A), and studies of minority versus white students' suspensions and expulsions (4-8). To examine the facts about zero tolerance laws, one would have to do an extensive study on all the school districts that claimed to have them, how they were applied, what the outcomes were, and indeed if they had an impact on the vices they were created to eradicate. Other facts to consider would be what happened to those who were sentenced to suspension or expulsion and what long-term effect this had on their lives. What long-term effect did it have on the remainder of the school population? Skiba and Peterson report that "there are almost no studies that evaluate the effectiveness of zero tolerance strategies"(9).

Though disagreement on zero tolerance may be a matter of fact and understanding for some, other disputants would disagree because of problems of value. Some may value the safety of the multitude above all else. Others believe in the right of the individual: each case must be looked at separately. Some may believe in the power and authority of the school and cite the need to preserve that authority. Still others will value the preservation of minority or socio-economically deprived students and say that they must be kept within the school system so as not to lose them. These are all aspects on which the disputants could disagree.

How would the various ethical theories align themselves if asked to examine the appropriateness of zero tolerance policies?

Zero tolerance represents the fair play concept ofjustice-everyone is treated similarly. For example, everyone caught with a weapon is expelled; everyone caught with alcohol or other drugs is sent to an alternative education placement; everyone who gets into a physical fight is charged with disorderly conduct. Curwin and Mendler argue in their article "Zero Tolerance for Zero Tolerance," "Schools should have zero tolerance for the idea of doing anything that treats all students the same." They give this example: "When two students in school throw a pencil-one because he has finished his assignment and is bored, the other because he cannot read the directions and thus hasn't even started the assignment-we do not treat them the same, regardless of the behavioral similarity. Any intervention that treats dissimilar problems with similar behavioral outcomes the same is not only unfair but destined to fail"(1). These authors cite the equality of consequences that zero tolerance demands, and in doing so, they argue the fair share concept ofjustice: unequal does not mean unfair.

According to Margaret Graham Tebo, legal affairs reporter for the ABA Journal, the zero tolerance fair play concept results in "snaring large numbers of regular kids in a broad net designed to fish for troublemakers." She cites Bernardine Dohm, director of the Children and Family Justice Center at Northwestern University School of Law: "Schools are confusing equal treatment with equitable treatment. Kids in middle school and high school care most about fairness. When they see two students whose 'offenses' are vastly different being treated exactly the same, that sense of fairness is obliterated and replaced with fear and alienation" (Tebo 4 1). Adults, like students, become alienated when they read applications of zero tolerances policies in the newspaper such as the following: a sixth grader from Columbia, South Carolina, brought a steak knife in her lunch box to cut chicken, and asked the teacher if she could use it. She ended up leaving school in a police cruiser, being suspended, and threatened with expulsion (Skiba and Peterson 5). Stories such as this breed cynicism about educators' ability to make wise and fair decisions concerning their children. Thus, the fair play aspect of zero tolerance can produce consequences in which no party wins: neither student, school-at-large, or administrator emerge with benefits.

The one major benefit of the fair play concept is its easy implementation. Such is true of zero tolerance. There is no need to sort out background circumstances or intent; the student bringing the steak knife to school is suspended regardless of whether it was to cut chicken or another student. Opposing the fair play concept of zero tolerance, Skiba and Peterson instead recommend a very complex series of interventions to combat school violence, stating, "There are doubtless those with little patience for the complex and careful planning that such a program demands, those who prefer the quick fix that zero tolerance purports to be. But the problems that have brought us to the current precarious situation in our nation's schools are highly complex and will not abide simplistic solutions"(12). Though these authors demean zero tolerance as ineffective and "simplistic," they do affirm that it is the faster, simpler approach.

Another means of examining zero tolerance policies is via the principle of benefit maximization (consequentialist theory) versus the principle of respect for persons (nonconsequentialist theory). Those schools which adopt zero tolerance policies would probably agree that their purpose is to provide for the safety and protection of the school as a whole and to deter would-be perpetrators, who would look at the laws or those previously "convicted and sentenced" and say, "I don't want to ever put myself in jeopardy of that situation. I'm not going to get caught doing that." These laws would also rid the schools of the undesirables: emotionally disturbed, drug and alcohol addicted, or just plain delinquent kids. Putting all these results together, for the consequentialist or utilitarian, zero tolerance fulfills benefit maximization -it achieves the greatest good for the most people (Strike, Haller, and Soltis 40).

This is the tack Superintendent Sam Ketchum could follow to justify his firing of newly hired math teacher Taylor Hunt in Strike, Haller, and Soltis' case, "The Rumors About Taylor Roberts." The superintendent could apply zero tolerance and rid his school of a potential undesirable who could do much harm molesting female students if allowed to teach there. Taking this strong position, the superintendent could prevent even so much as the ugly rumors from following Taylor Roberts into the school system. This zero tolerance action does not take the time to scrutinize Taylor Roberts' circumstances at his two previous schools. It places the well-being of the school before the well-being of a man desperately trying to start over with a clean slate.

Conversely, the nonconsequentialist would look at the individual first. What infraction did the accused commit? What was his or her intent? What were the circumstances? The nonconsequentialist would not simply impose a blanket consequence on a student because his or her offense ostensibly fit the school crimes code in the zero tolerance category. In their defense of due process, the authors of The Ethics ofSchool Administration argue that "...the consequences of treating people reasonably are better than those of treating people unreasonably" (Strike, Haller, and Soltis 80). To impose a flat consequence on everyone the same is unreasonable. The authors go on to state that "One important moral concept about punishment is that the punishment should fit the crime. Generally, the idea seems to be that people who have done something morally wrong deserve to suffer in proportion to the evil they have done. Too much punishment or too little is inappropriate. This conception of punishment makes sense from the nonconsequentialist point of view, because it recognizes that people are morally responsible for their choice and that they can do evil. It recognizes that people are sometimes guilty. And it provides a way to absolve guilt through punishment. One justly suffers proportionately to the wrong one has done" (81).

The consequentialist would argue that punishment "must be justified by its consequences," and deterrence is a desirable outcome. Punishment that is sufficient to deter may not fit the crime. The example given in The Ethics of School Administration is much like zero tolerance. It describes a hypothetical situation in which gum chewers would be hung from the school flagpole to deter gum chewing, since trivial consequences have been proven ineffectual. The authors suppose that the principal would not have to hang any students, because the dire consequences would be a deterrent. However, this writer sees numerous scenarios in which the principal might be forced to execute "bubble-gum malefactors," much like school authorities have to impose zero tolerance penalties. For example, first there is the student who chewed gum on the walk to school and upon arriving, saw a female student he found very attractive so he kept the gum in his mouth to assure himself that his breath was sweet. After having talked to the young woman, he was so ecstatic he forgot to remove the gum from his mouth before going to first period, whereupon he was caught by his English teacher -- execution one. Second, there is the student who chews gum on a dare-he doesn't plan to crack it, stick it on the bottom of the desk, or throw it in someone's hair. But, he gets caught-execution two. Third, there is the student who has a terrible sore throat but doesn't want to miss calculus class so he comes to school and chews gum to alleviate the burning of his throat. He gets caught by his calculus teacher -- execution three. Finally, there is Mark Malevolent who purposefully chews gum so that he can affix it to desks, floors, and other peoples' hair -- execution four. Do all four of these students deserve to be hanged from the flagpole?

Most of us would beg for mercy for the first three students. As Strike, Haller, and Soltis state: "We are obligated to treat people reasonably because they are people. Treating people reasonably respects them as persons. Capricious treatment denies the worth of the person maltreated" (82). Even though the zero tolerance policy demands equal treatment, many would call it capricious because it does not consider circumstances and intent. As any teacher or principal knows, legislating a harsh punishment to deter a crime does not always do so, and the school official is caught having to enforce the severe consequences to an undeserving recipient.

The concept of benefit maximization is important here; the welfare of all students in the school is extremely important. But does it supercede the principle of equal respect? The principle of equal respect recognizes that people are free moral agents and responsible for their own actions. This is learned behavior. "Educators are in the business of creating responsible moral agents. Indeed we believe that it is their central task." Does imposing a zero tolerance penalty on all students who ostensibly create a specific infraction help a particular student grow? Strike, Haller, and Soltis respond: "In our view, growth as a moral agent, as someone who cares about others, and is willing and able to accept responsibility for one's self, is the compelling matter. Promoting this kind of development is what teachers and administrators ought to be fundamentally about, whatever else it is that they are about. As educators, we are first and foremost in the business of creating persons" (84). Students do not become morally stronger because they have been clouted with a severe consequence; more likely, they just become bitter at the system which imposed it. Imposing zero tolerance penalties teaches students that to preserve law and order we must suspend individual rights and liberties; it is an authoritarian philosophy (Skiba and Peterson 11).

How would the functionalist, conflict theorist, and interpretivist view zero tolerance policies? The functionalist believes that the purpose of public education is to prepare young people to exist in contemporary society, which includes political, economic, and social conditioning (Feinberg and Soltis 22, 24). Educational institutions exist to "further the survival of the social system as a whole"(1 5). As noted in the history of zero tolerance above, it was first used in federal and state judicial systems; then it began to be emulated by the schools. When the 1994 Gun-Free School Act was passed, districts followed with other zero tolerance policies for lesser offenses.

Thus, schools in yet another way became the microcosm of society. Schools do attempt to prepare students for "the real world" not only in curriculum, but in socialization. Part of socialization is understanding that for certain crimes one is removed from society, incarcerated. And, as the nation's citizens cry to politicians, "Get tough on crime!" schools have followed suit. Furthermore, to "further the survival of the social system," the school must protect its best and brightest from its derelicts.

The conflict theorists would view this whole ethical dilemma as one of class conflict; they see the "driving force" of society to be the "unending struggle between different groups to hold power and status"(Feinberg and Soltis 43). They would say that since most serious school offenders were from poor or outcast groups, the zero tolerance policy is just another attempt by the dominant social groups to repress and ostracize those on the lower social strata. Marxists believe that "new codes are developed by and for a specific social class"(52); therefore, the zero tolerance policies would have been, in the eyes of a Marxist, developed by the dominant class as a means of protecting themselves from the subordinate classes and insuring their own preservation. Skiba and Peterson make two assertions in their refutation of zero tolerance that conflict theorists would pounce upon to corroborate their stance. First, they say that "the unfortunate correlation of race and poverty in our society suggests that inequitable racial treatment in discipline may be a socioeconomic issue rather than a racial one." They also cite Pedro Noguera who wrote in the Harvard Educational Review that "the primary function of harsh punishment is not to change the behavior of the recipient, but to reassert the power of authority." Thus, the conflict theorists would view zero tolerance as another tool of the class in power to keep its control.

The neo-Marxist study of "the lads" further reinforces the class channeling potential of zero-tolerance policies. The lads defied the system; they saw thinking as effeminate; they refused to bend to the rules. Thus, they doomed themselves to life in a factory doing dull and unsatisfactory work (66-68). Likewise, those most likely to come face-to-face with zero tolerance laws see guns and violence as macho; do not value the thinking person's education; and doom themselves to unfulfilling jobs. Suspension and expulsion are a catalyst to this process, the conflict theorists would argue.

The interpretivist would view the zero tolerance policies as extremely reactionary and the result of administrators and school boards who had not used hermeneutics to study the system carefully, understand the cultural forces at work which caused violence or other serious vices in the school. Only by qualitative studies of the school could one determine what would be the most effective means of dealing with students who committed serious offenses or of preventing those offenses beforehand. To do this study effectively one would examine this microcosm by staying inside of it and looking at a multitude of aspects.

This writer's findings mount in favor of replacing zero tolerance laws. There is no preponderance of evidence about the effectiveness of zero tolerance in deterring crime, or in making schools or society safer. There is no evidence that these laws help the students who are punished under them. Unfortunately, there are well-publicized cases of their application that discredit public education (see Appendix A). In all other areas, education is moving toward increased individualization: one-size-fits-all discipline is incongruous.

A scan of internet sources on zero tolerance laws reveals a vast number of sources to be against such policies. These sources range from irate parents whose children have been, in their opinions, dealt a gross injustice by a school's suspension or expulsion to scholarly articles in education j ournals which use logic to argue against them. If zero tolerance policies could be pictured as a pendulum which began to swing in the early 1980s and reached its full swing in the late 1990s, and the scholarly articles could be viewed as harbingers, then one might conclude that the pendulum is now beginning to swing back. Though there has been much reactivity to and knee-jerk policies developed as a result of the Columbine massacre, as the emotionalism wanes there is a swell of rational voices that asserts the battle must begin with prevention. At the National Association of Secondary School Principals (NASSP) national conference in February, 2000, there was a plethora of concurrent sessions on the specific ways to deal with disadvantaged, disenfranchised students and well as methods of connecting with all students in the school community; however, there were no sessions on enacting tougher discipline laws. This, too, is indicative of the trend. In terms of ethics, the fair share and nonconsequentialist groups and others are now speaking: give to those who need and develop personhood rather than clout all infractions with the same harshly punitive response.