One Strike and You're Out? Constitutional Constraints on Zero Tolerance in Public Education

Authors

Eric D. Blumenson
Eva S. Nilsen, Boston University School of LawFollow

Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Article

Publication Date

Spring 2003

ISSN

0043-0862

Publisher

Washington University School of Law

Language

en-US

Abstract

Various studies reported that juvenile crimes of violence fell in the 1990s by as much as 30%. ¹⁰ In high schools specifically, the incidence of threatening behavior in 1996 changed little from two decades earlier, ¹¹ with the chances of being killed in school far less than being struck by lighting. ¹² The "juvenile crime bomb" proved illusory (as Delulio himself eventually acknowledged ¹³), but the severe measures designed to deal with it remain entrenched. Zero tolerance has taken on a life of its own, partly because public misperception remains high, ¹⁴ and partly because in our hardheaded times isolation seems a safer bet than rehabilitation. Moreover, public school personnel have a number of powerful incentives to keep zero tolerance policies in place: federal aid is contingent on mandatory expulsions for weapons offenses; teachers are loathe to abandon a policy

Notwithstanding the popularity of zero tolerance policies, the resulting denial of public education to massive numbers of children threatens irreparable damage, not only to these individuals but to all of us. ¹⁶ This Article assesses the intended and unintended consequences of public school zero tolerance policies and details a number of constitutional infirmities of such policies that could provide an avenue for reform. We begin in Part I with a description of the multifaceted role that zero tolerance has come to play in public schools. Part II examines the rationale and actual impact of zero tolerance as school policy, and Part III explores what we argue are significant constitutional constraints on use of this policy to deny schoolchildren a public education. After assessing the as-yet-unresolved status of educational rights in the federal Constitution, we delineate a number of reasons why expulsions from the public school system may be constitutionally impermissible under both state education provisions and federal and state equal protection clauses.

Recommended Citation

Eric D. Blumenson & Eva S. Nilsen, One Strike and You're Out? Constitutional Constraints on Zero Tolerance in Public Education , in 81 Washington University Law Quarterly 65 (2003).
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3875