In an effort to control perceived growing violence in schools, Congress passed the 1994 Gun Free Schools Act (GFSA) which required states to implement zero tolerance policies on school property as a prerequisite for receiving federal aid from the U.S. Department of Education. In 2002, Congress repealed this version but reauthorized the zero tolerance requirement under the No Child Left Behind Act. The revised bill expanded the school’s jurisdiction for such offenses from school property to any school-related function. So under the No Child Left Behind Act, school districts would not receive federal funding unless they implemented zero tolerance policies with a mandatory one year expulsion for any student who brings or possesses any firearm on school property or at any school function. School officials are also required to report these offenses to law enforcement agencies.
Have school boards taken these policies too far? Despite no duty or requirement to do so, most school districts have enacted strict zero tolerance policies for other offenses including possession of knives, drugs, alcohol, and tobacco. They have also enacted zero tolerance offenses for acts of violence and even expression of speech, all under the guise of protecting students. For example, an honor student in Dearborn, MI was suspended this month for a year because school officials found a small pocket knife in her bag at a football game. From the Huffington Post:
A Detroit-area high school has suspended an honors student for the rest of the school year over a pocketknife the student says she had by accident.
Atiya Haynes, 17, was caught with the pocketknife at a homecoming football game in late September at Annapolis High School in Dearborn Heights, Michigan. School officials were searching the bags of female students exiting the restroom after a security guard claimed to have smelled marijuana nearby, according to local outlet WXYZ-TV. When officials searched Atiya’s bag, they found no marijuana, but did find a small knife.
Atiya says she did not realize the knife was in her bag. Her grandfather had given it to her over the summer, urging her to carry it for protection when riding her bike through dangerous neighborhoods to her lifeguarding job, according to MLive.
Atiya, an Advanced Placement student, was originally expelled from Annapolis High following the incident. However, on Monday, the school board rolled back her punishment, albeit slightly. Atiya is now suspended for the rest of the year, but will be allowed to take online classes and graduate with her class in 2015, reports local outlet WJBK-TV.
For starters, students do not lose their constitutional rights when they enter school property. Tinker v. Des Moines Indep. Cmty. Sch Dist, 393 U.S. 503 (1969). The Supreme Court has further held that public school administrators are considered state actors for purposes of Fourth Amendment searches. New Jersey v. T.L.O., 469 U.S. 325 (1985). Students also have a reasonable expectation of privacy in items that they bring to school, even though this expectation is diminished. School officials do not need probable cause to search, like law enforcement would. They may search based on a reasonable suspicion of wrongdoing and most jurisdictions require that this reasonable suspicion is individualized. One US District Court has held that the scent of marijuana is insufficient to show an individualized reasonable suspicion of wrongdoing if the scent cannot be determined to come from any individual or confined group. Here, the security guard claimed that s/he detected the scent of marijuana “nearby”, but there is nothing to suggest that the scent could be confined to Atiya or anyone else in the immediate area. I would argue that this was an unreasonable search and the knife is just “fruit from the poisonous tree.”
Let’s say, for all intents and purposes, that the search was valid. The punishment still does not fit and is excessive. Miss Haynes is an honor roll student, enrolled in AP classes, and potentially college bound. I would imagine that this suspension will go on her permanent record, which could affect her ability to receive scholarships or even get into certain colleges. Furthermore, the evidence suggests that she didn’t even know that the knife was in her purse. Is this the type of protection that Congress had in mind when it passed No Child Left Behind? In this case, Atiya Haynes is the only child being left behind and she is not the only one. Here are some other examples of overreaching zero tolerance policies:
In 1998, a Colorado school expelled a ten year old student when her mother inadvertently packed a small paring knife in her lunch. Despite trying to do the right thing by turning it in, she was expelled under zero tolerance policies and school officials said they had no discretion. While the expulsion was eventually overturned, her family was forced to move after receiving harassing letters that her family was trying to destroy the school.
In 1999, a Florida high school student was suspended for one year for bringing nail clippers to school. This expulsion was also reduced to a ten day suspension. However, the principal of the school was quoted as saying that he “was not…ready to arm kids with more ammo, to bring more items on our campus and make it an unsafe place.” Forget the fact that the student never used the nail clippers herself. Did I mention that her “crime” was bringing nail clippers to school? Nail. Clippers. This is the kind of “dangerous” activity we are trying to protect students from? Let that one sink in.
In 2013, two Virginia middle school students were suspended for nine months for shooting airsoft guns (similar to BB guns) in their front yard. The school claimed jurisdiction because the bus stop was in front of their house.
In 2012, a six year old student in Maryland was suspended for pointing his finger in the shape of a gun and saying “pow.” The principal sent a letter home to the parents stating that the boy “threatened to shoot another student.” Yes, this will be on this boy’s permanent record.
Similarly, a seven year old Maryland student was suspended in 2013 when he bit his pop tart into the shape of a gun and said “bang bang.” These two events led Maryland State Senator J.B. Jennings (R-Baltimore) to introduce the “Reasonable School Discipline Act of 2013” to the Maryland Legislature, which would prohibit schools from suspending or expelling students who use any object that resembles a gun, but serves another purpose. In other words, the bill requires school administrators to use a little common sense. Has it really come to the point where we need such legislation?
In 1999, a Missouri high school junior was suspended for ten days when he responded “yes!” to an online message board asking whether students thought that a Columbine incident could happen at their school. As a result, he became ineligible for the National Honors Society and missed taking achievement tests which would have placed him in college level courses.
Finally, we saw the post made by Tom Knighton yesterday about the five year old student who was forced to undergo a psychological evaluation and sign an agreement to not harm anyone or herself because she drew a picture of a gun and held up a crayon, saying “pew pew.” She is five!
According to the National Association of School Psychologists, students who are suspended from school are more likely to suffer psychological disorders such as depression and anxiety from being ostracized. They are also much more likely to wind up in the juvenile justice system and therefore, the “playground to prison pipeline.” The American Psychological Association’s Zero Tolerance Task Force further found that zero tolerance policies had the opposite effect on preventing school violence. This is just another example of overreaching state power and the government, in its “infinite wisdom”, thinks it knows best. We would be better off to eliminate or reduce zero tolerance offenses. Our kids and future generations will thank us.
Albert is a licensed attorney and holds a J.D. from Barry University School of Law as well as an MBA and BA in Political Science from The University of Central Florida. He is a conservative libertarian and his interests include judicial politics, criminal procedure, and elections. He has one son named Albert and a black lab puppy named Lincoln. In his spare time, he plays and coaches soccer.