Schools must follow some basic procedures before they punish a student or deprive a student of a legally protected educational opportunity.  These basic procedures include providing students (and sometimes their parents) with:

1)      Adequate Notice:

• Notice from the school of what the child has allegedly done 
• Must be given BEFORE the student is punished

2)      Discipline Hearing or “Due Process” Hearing:

• The opportunity for the student and parent to respond to the allegation before a neutral party if necessary.
• Depends on the nature of the offense and the educational opportunity that the student might lose.

Ultimately, courts balance 3 factors (student interest, risk of error, and burden on school) to determine the exact nature of the procedures and hearings required before imposing punishment on students.  However, because many punishments occur so often, courts have reached general rules about what process is due in many circumstances.  The materials on this website provide parents with what they need to know to identify the general requirements for due process in one of three ways.  A parent can review materials based on the type of punishment their child is to receive, the type of behavior the student is to be punished for, or the type of process the parent wishes to secure before the child is punished.  This website also contains general information regarding what it means to receive notice and an opportunity to respond, which applies to all infractions, punishments, or processes.

EXAMPLES:

Burden on School – Significant Burden on the School vs. Insignificant Burden on the School

Permitting students to be represented by attorneys who might cross-examine witnesses or produce voluminous evidence >> Permitting students to provide written statements from witnesses

The more burdensome additional procedures are for schools, the less likely it is that additional procedures are required.  For instance, permitting students to be represented by attorneys who might cross-examine witnesses or produce too much evidence can place a significant time and administrative burden on schools.  Thus, allowing this type of process is not required for less serious punishments.

Risk of Error – Significant risk of error vs. Insignificant risk of error

Did the student steal the valuable property of a fellow student? >> Was the student absent from class without permission?

The greater the likelihood that a student might be mistakenly deprived of that right in the absence of more formal procedures, the more likely the court is to require the additional procedures.  For instance, the risk of error may be relatively low if the question is whether a student skipped class.  Either the student was or was not absent from class without permission, and very little process may be necessary to resolve this situation correctly.  In contrast, if a student is to be punished for alleged theft of a fellow student’s property, more process may be necessary.  Without some development of the facts, one could easily mistake an item as stolen when, in fact, the item had been loaned to the accused student, sold to the accused student, or given to the accused student by someone else who stole the item. 

Student Interest – A Significant Educational Opportunity vs. An Insignificant Educational Opportunity

Disciplinary action could result in taking an educational opportunity away from the student.

Permanent expulsion from school (the student might loose access to education for a year) >> Detention for an evening

The more important the student right is, the more likely it is that a more formal hearing and notice is required.  For instance, permanent expulsion involves serious student rights, as a student might lose all access to education for a full year.  In contrast, an in-school suspension does not mean that the student will be denied a serious educational right.   

In contrast, if a student is to be punished for alleged theft of a fellow student’s property, more process may be necessary.  Without some development of the facts, one could easily mistake an item as stolen when, in fact, the item had been loaned to the accused student, sold to the accused student, or given to the accused student by someone else who stole the item. 

 

Notice of the Charges and the Right to Respond to Them

The most basic right students have in discipline is the right to notice of what they are accused of doing and an opportunity to respond to that accusation with their side of the story.  How formal that notice and opportunity to respond must vary depending on circumstances, but notice and opportunity to respond must always be provided in some way.  In some instances, students might be allowed to written charges in advance of a hearing, as well as an opportunity to present evidence at that hearing.  In other instances, the school need only briefly explain what the student is accused of doing and offer the student a brief opportunity to respond.  The materials below offer a more detailed explanation of notice, the opportunity to respond, the distinctions between informal and formal hearings, as well as the narrow exception to the general rule that students must receive due process prior to punishment.

Before suspending or expelling a student, a school must give that student notice of what he or she is suspected to have done, as well as the specific rule that the school claims that the student violated.   If the student denies wrongdoing, the school must further provide him or her with evidence that supports its accusation.  Requiring schools to give students notice is meant to ensure that students have enough time and information to prepare and present their side of the story.  When a student is facing a “minor punishment,” such as a suspension of 10 days or less, a school may move from giving notice into an informal hearing without any delay.  However, when a student might be excluded from school for longer than 10 days, a school should give the student more time to prepare, including notice of when and where the hearing is to take place.  Often a student will receive notice one or more days in advance of the hearing for suspensions that will last longer than 10 days.

Many states require the notice to be in writing, especially for long-term punishments, but this is not a uniform requirement.  Some states also require that both the parent and the student receive notice, but this also varies from state to state.  You will need to check the state specific rules in the Resources tab to confirm these points.  However, regardless of contents of the notice or whether it is in writing or oral, schools should provide the notice in the primary language of the student’s family, if that language is not English.

Adequate Notice:

• Notice from the school of what the child has allegedly done 
• Must be given BEFORE the student is punished

Discipline Hearing or “Due Process” Hearing:

• The opportunity for the student and parent to respond to the allegation before a neutral party if necessary.
• Depends on the nature of the offense and the educational opportunity that the student might lose.

Ultimately, courts balance 3 factors (student interest, risk of error, and burden on school) to determine the exact nature of the procedures and hearings required before imposing punishment on students.  However, because many punishments occur so often, courts have reached general rules about what process is due in many circumstances.  The materials on this website provide parents with what they need to know to identify the general requirements for due process in one of three ways.  A parent can review materials based on the type of punishment their child is to receive, the type of behavior the student is to be punished for, or the type of process the parent wishes to secure before the child is punished.  This website also contains general information regarding what it means to receive notice and an opportunity to respond, which applies to all infractions, punishments, or processes.

The nature of the notice students must receive depends on the punishment:

If the nature of the punishment is MINOR (suspension of 10 days or less), then the school may move from giving notice to a hearing without delay.

If the nature of the punishment is SEVERE (suspension for longer than 10 days), then 2 things must happen:

1)      Student is given more time to prepare and given the time and place of the hearing in advance.

2)      The student receives official notice of the hearing one or more days in advance.

In summary, notice should:

• be given in the primary language of the student’s family
• indicate the rule the student has violated
• specify the evidence demonstrating the student has violated the rule
• be given well in advance of a hearing if the punishment is a suspension lasting more than 10 days
• be given at least some time in advance even for short term punishments
• in some, states be delivered in writing.

In general, students receive what is called either a “formal” or “informal” hearing.  Whether a student receives a formal or informal hearing depends on the seriousness of the punishment the student is facing. 

Informal Hearing

When does it occur? For less severe punishments, an informal hearing will take place for short-term suspensions that last for 10 days or less.

What is it? An informal hearing is usually an informal “give-and-take” between the accused student and the disciplinarian or a conversation between the student and the disciplinarian about what the student is accused of doing, why the student is being accused, and an opportunity for the student to tell his/her side of the story.

What rights does the student have? During informal hearings, schools do not have to permit students to have an attorney present, to cross-examine witnesses, to confront their accuser(s), or to exercise any other rights generally granted in formal judicial proceedings.

Formal Hearing

When does it occur? A formal hearing takes place for severe punishments, long-term suspensions that last for 10 days or more (may be 10 days in a row or 10 days cumulatively).

What is it? A formal hearing is a hearing that more closely resembles a court hearing where an impartial official hears both the school and the child.

What rights does the student have? Generally, a student has the right to an attorney, to cross-examine witnesses, to call their own witnesses, but they do not always have these rights in a due process hearing.

Elements of a Formal Hearing

A formal hearing should always include an:

1.  Impartial decision maker
2. A presumption of innocence and
3. An interpreter, when necessary. 

In some instances, formal hearings might also include:

1. The right to have an attorney present
2. The right to present and cross-examine witnesses
3. The right to introduce various types of evidence.

 Each of these rights or potential rights is discussed individually below.

GUARANTEED RIGHTS DURING A DUE PROCESS HEARING:

1)      Impartial Decision Maker

For punishments that require formal hearings, students also have a right to be heard and give their side of the story in front of an impartial decision maker.  This individual takes on a role similar to that of a judge, but this decision maker (sometimes referred to as a hearing officer) may still be a teacher or an administrator who works for the school.  In fact, even a teacher or administrator who played a role in the investigative process may serve as the decision maker later on in the disciplinary process.

Allowing these particular teachers or administrators to serve as the decision maker is at odds with protecting students’ rights, particularly the right to an unbiased decision maker.  Courts have resolved this conflict by assuming the good faith of teachers/administrators and their ability to remain neutral in a disciplinary hearing, unless there is some evidence to the contrary.  If a student or parent feels that his or her hearing officer is or was biased, the student has the burden of establishing this person’s alleged partiality.   In short, courts assume that the decision maker is impartial until the student or parent objects.

2)      Presumption of Innocence and Necessary Evidence

A student is presumed to be innocent in a disciplinary proceeding, until proven otherwise.  A school must establish a student’s guilt by “substantial evidence.”  This means the school must have enough evidence that a reasonable mind would find it adequate to support the school’s finding.  This is a more lenient standard than the “beyond all reasonable doubt” standard used in criminal cases.  Nevertheless, “substantial evidence” still places a burden on the school to prove a student’s guilt.   

However, the forms of “evidence,” or what counts as “evidence,” are broad in disciplinary hearings.  Because disciplinary hearings are not criminal trials, schools are not subject to the strict evidence standards that apply to trials.  Thus, schools may rely on any form of factual information that might serve as “competent and substantial” evidence of the student’s guilt.  This means that schools may use the written statements of other students as evidence, as well as any other form of hearsay (second-hand forms of information), during a student’s disciplinary proceeding.

3)      Right to an Interpreter

A student’s disciplinary hearing must be conducted at a meaningful time in a meaningful manner, and must be tailored to meet the needs and capabilities of the accused student.  This means that if a student’s primary language is not English, the school generally must provide the student with an interpreter to translate the proceedings.  Even where no court has held that an interpreter is required, most states have enacted rules that would require these services.  To find the exact details of your states laws, please consult the state materials.  

POTENTIAL RIGHTS DURING A DUE PROCESS HEARING

4)      Right to Counsel

Whether a student has a right to seek the assistance of counsel in a formal disciplinary hearing varies from state to state.  Many states or courts have been hesitant to give students the right to present their case through an attorney in student disciplinary hearings, emphasizing the burden that requiring such a formal presentation would have on the school administration.   However, recent cases have often reached a middle ground of requiring that, although a student does not have a right to present his or her case through an attorney, he or she does have the right to seek the assistance of a lawyer who can play an advisory role during the disciplinary hearing.  Thus, these lawyers can only give the student guidance, rather than perform the normal duties of an attorney, such as questioning witnesses.   In short, parents should keep in mind that the extent to which a student can rely on an attorney varies by state, and courts have yet to recognize that students have a general constitutional right to rely upon an attorney in school disciplinary proceedings.  Please consult the state specific materials to determine whether your particular state affords any rights in regard to counsel.

5)      Right to Confront / Cross-Examine Witnesses

Generally, in a court proceeding, the accused has the right to confront his or her accuser and cross-examine witnesses that testify against him or her.  Like many other aspects of a disciplinary hearing, a student’s right to confront and cross-examine witnesses depends on the competing interests of the student and the school.  Most courts have found this process to be unnecessarily burdensome on the school.  And those courts that have recognized a student’s right to confront accusers and cross-examine witnesses have only done so when there is a concern that the hearing officer may reach an incorrect decision unless these procedures are followed.  For example, if the credibility of a witness’ testimony is lacking, or when a witness or accuser seems to be motivated by malice or prejudice, an accused student is more likely to be entitled to confrontation and cross-examination. 

These circumstances, however, are narrow exceptions to the general rule that students are not entitled to the right to confront accusers and cross-examine witnesses in disciplinary hearings.  Courts stick to this general rule for several reasons.  First, formalizing the hearing adds length and administrative burden on the school.  Second, given their regular interaction with the students, courts are willing to defer to school administrators’ judgment in determining the credibility of student accusers and witnesses.   These courts believe that if the administrator feels that the person testifying is trustworthy there is no reason to add additional processes.  Third, given the confinement and close proximity of students, schools have an interest in protecting the anonymity of student accusers and witnesses.  Without anonymity, students may face threats of repercussion from the accused student and become unwilling to inform school administrators of infractions or potential threats in the future.  Requiring cross-examination and confrontation would eliminate schools’ ability to protect and encourage students who report information.

In short, the right to cross-examine or confront witnesses is rarely required.  The only exceptions occur in specialized circumstances where such procedures are necessary to arrive at the truth or a state law has specifically extended the right.

6)      Right to introduce various types of evidence

Exceptions to Prior Notice and Response

In general, schools must provide a student with notice and an opportunity to be heard before depriving the student of the right to attend school.  However, courts have recognized an exception to this rule in emergency circumstances.  An emergency exists when the student’s presence at the school poses an ongoing threat of disruption or an ongoing danger to the safety of others.  In these emergencies, a school can suspend or expel a student before holding a hearing.  However, the school must provide the student with notice and a hearing as soon as practicable after the punishment.  In no instance should the delayed notice and hearing occur more than 3 days after the punishment.

As discussed throughout these materials, students’ rights and the due process that they are entitled to vary depending on what type of punishment a school is imposing.  Below is a list of the various types of punishment a child might suffer and the corresponding rights they have in regard to each.  These punishments include:

1. Suspensions (short and long term)
2. Emergency Suspensions
3. Expulsions
4. Corporal Punishment
5. Alternative School
6. In-school Suspension
7. Denial of Privileges (exclusion from a class, an extracurricular activity, graduation, bus transportation; denial of a diploma; and lowering a grade)

Suspensions

Suspension is one of the most common punishments in schools.  Students who are suspended from school always have a right to due process.  The exact amount and type of process depends on whether the student was suspended for more or less than 10 days.  Suspensions of 10 days or less are considered short term suspensions, while suspensions of longer than 10 days are considered long term suspensions.

Short-term Suspensions

For suspensions of 10 days or less, a student is entitled to due process that includes basic notice and an opportunity to be heard.  For these short suspensions, the notice and chance to tell one’s side of the story can happen at the same time, and a simple short conversation between student and principal is enough.  An example of this would be if a student is involved or suspected to be involved in some incident and is called to the principal or assistant principal’s office.  The administrator may ask the student some questions or allow the student to relate his or her version of events, and then decide what, if any, discipline is appropriate.  Parents must also be notified of the suspension and the reason(s) for it.  So long as there is a phone call or a note to parents explaining the reason for the suspension, the notice is sufficient under the Constitution.

Long-Term Suspension

Long-term suspensions (more than 10 days) usually require a more formal meeting with a principal or assistant principal.  However, the formal hearing may not always occur before  the initial suspension.  A common procedure is for an administrator to first impose a short suspension after an informal hearing and then have a follow-up meeting with the student to determine whether the suspension should be extended.  The school should provide the appropriate advance notice and follow the rules for a formal hearing in the follow-up meeting.  For me details on formal hearings, see [link].

Emergency Suspensions

Courts have granted schools flexibility in imposing suspensions under emergency circumstances.  In these circumstances, the courts have recognized an exception to the normal due process rules.  In particular, when a student’s continued presence in school presents a danger to others or is highly disruptive to school functions, the school may immediately remove the student from school without any kind of hearing.  The school, however, must still hold a due process hearing as soon as possible after the suspension has begun.

Expulsion

Expulsion  is a permanent suspension from a school or school system.  An expelled student is often not allowed to return to school or the school district for the rest of the semester, school year, or the student’s academic career.  Students facing expulsion are entitled to formal notice of the charges against them and the time, date, and place of a hearing where they will have a meaningful chance to be heard.  Expulsion proceedings are generally the most formal of any disciplinary process since they are the most serious.  Students often have a right to call witnesses and have either parental or attorney representation.  In some states, students may have the right to cross-examine witnesses against them.  Students also usually have a right to appeal an expulsion decision to the school board or the state department of education.  For more information on what rights might be afforded in a formal hearing, consult the materials on this website for “Formal Hearings” and the materials on specific disciplinary procedures in your state.

Corporal Punishment

Corporal punishment is still legal under the United States Constitution, but a significant number of states and school districts prohibit corporal punishment on their own.  If you live in a state where corporal punishment is legal, your child is still entitled to due process, but the process is relatively limited The Supreme Court has indicated that due process may occur after the corporal punishment has occurred. One important limitation, however, is that punishment must usually be performed outside the presence of other students, but with the presence of another teacher or administrator.  Students who have been excessively injured or humiliated by corporal punishment can still bring lawsuits.  For more information on corporal punishment and to determine whether it is legal in your state, visit [link].

Transfer to Alternative School

Courts are not in agreement on what process, if any, is required for transfers to alternative schools, largely because the student is not technically being denied an educational opportunity.  Rather, the student is just being reassigned to another school.  With that said, alternative schools, as a general matter, offer inferior educational opportunities and are obviously a form of punishment.  No parent should consent to his or her child’s reassignment to an alternative school without seriously considering the matter. 

The first thing a parent should do is find out what he or she can about the alternative school.  If the alternative school offers an inferior educational experience because of more limited curricula, limited instruction, or reduced class time, the transfer amounts to a serious punishment and deprivation of education.  Thus, students should receive some form of a hearing before being transferred.  Because alternative schools have become so prominent in school discipline policies, it is likely that your state has standard procedures that must be followed before a transfer.  Therefore, you should check the state-specific materials and any discipline guides that schools have sent home for these procedures and ensure they are followed.  Even if your state has limited process requirements for disciplinary transfers, you might claim that your child is entitled to a more formal hearing because the transfer is punishment, will result in your child losing certain academic opportunities, or some other form of punishment is being imposed in addition to transfer. 

In-School Suspension

Federal courts generally have said that in-school suspension does not involve a significant enough deprivation of access to educational opportunities to require due process.  State laws, however, may say otherwise.  Thus, you should check your local laws and policies to see if they grant students any protections and, if so, to make sure your child has been given the appropriate chance to tell his/her side of the story before a lengthy in-school suspension.

Denial of Privileges

Suspensions, transfers, and expulsions are seen as the most severe forms of discipline because they take away a child’s right to a publicly funded education.  However, schools sometimes punish students, not by removing them from school or class, but by limiting the activities they can participate in, the awards they can receive, or basic privileges that other students enjoy.  These punishments can still have a serious impact on students and due process sometimes applies.  The materials below describe the most frequent types of privilege restrictions that are used as punishment and whether due process applies.  It is important to note, however, that your school district or state may offer protections beyond those required by federal law.  Thus, you should also consult the state resources on this website.  Federal law, at most, offers students informal hearings for these losses of privileges, while state law may provide more specific or formal rights.   

Removal from Specific Classes

For the most part, federal courts do not recognize any protected right to enroll in a specific class.  This means that if, as part of maintaining discipline, your child has been permanently removed from one class, there is no official requirement for notice or a hearing.  If your child has been removed from a class and there is no suitable replacement class, or if the class is a requirement for graduation or promotion, you may have a stronger claim that there should have been notice and a hearing.  In general, though, removal from class rarely requires due process.

Exclusion from Extracurricular Activities

For a long time, most courts viewed participation in clubs and sports as a privilege, not a right.  Therefore, most courts have not required notice and a hearing before a student can be removed from a team or club.  However, some recent court decisions show that courts are beginning to view extracurricular activities as a more important part of a child’s education.  If you believe your child has been wrongly removed from a sports team or club without notice or a hearing, the nature of the circumstances and the particular state in which you live may determine whether you should pursue the matter further.  If your child has a right to due process, however, this does not mean he has a right to remain on the team, but simply that he may have a right to due process before being removed.

Exclusion from Graduation

Not many courts have stated conclusively if a student is entitled to notice and a hearing before being excluded from graduation ceremonies.  Most that have addressed the issue have determined that there is no protected right to attend graduation, so there is no due process requirement.

Lowering Grades as Punishment

Sometimes students’ grades indirectly suffer as a result of discipline or their behavior itself.  For instance, a student might be absent from or tardy to a class because he has been suspended or detained for some infraction, or because the student is simply skipping class.  When students’ grades are affected by disciplinary actions or their own behavior, schools are generally under no obligation to offer students additional due process in regard to the lowering of the grade itself.  The only exception might be if a school lowers a student’s grade as the primary punishment itself, such has lowering a student’s academic grades, rather than suspending, the student for fight.  Some courts might perceive such punishment as irrational and unrelated to the student’s behavior and, thus, not allowed.

Denial of Diploma

Courts have found that students are entitled to receive their diplomas when they have fulfilled the school’s academic requirements.  If your child is being denied his/her diploma for disciplinary reasons, you are probably entitled to at least a conference, though perhaps not a formal hearing.  Because states are very concerned with school discipline, there are often local laws and rules that address this issue.

Exclusion from School Bussing

If your school district provides free bussing, then your child probably has a protected right to take the bus to school.  This is especially true if getting your child to school without free bussing is very difficult or impossible.  In such cases, you are likely entitled to the same notice and hearing as for a suspension of the same length of time as your child’s exclusion from bussing.  As with emergency suspensions from school, the school may end your child’s bussing services without notice or hearing if his/her presence on the bus is believed to be dangerous to others.  As with other privileges, however, a right to due process does not mean that the child has a right to remain on the bus, but that he has the right to notice and an opportunity to respond before being permanently removed.

What are zero tolerance policies? What is their goal? What are their outcomes?

Zero tolerance policies are school discipline policies that create mandatory punishments for specific offenses. Under zero tolerance, schools do not make exceptions or substitute punishments under any circumstances.  After schools adopt such policies, there are often far more students suspended and expelled because schools no longer exercise discretion or leniency toward students.  While the initial target of zero tolerance policies was drug and weapons possession, these policies have since been extended to nonviolent and non-drug behavior such as defiance of authority, habitual profanity, defacing school property and gang-related behavior in schools. 

Goal of zero tolerance policies

The goal of zero tolerance is to have a uniform school discipline approach, maintain safe schools, and discourage students from disruptive behavior by being less lenient and personalized in disciplining certain behaviors.

Result of Zero-Tolerance Policies

The result has often simply been to increase the number and severity of punishments on students, sometimes under ridiculously petty circumstances.  Moreover, some school systems resort to these tactics in part because they have failed to promote proper learning environments and are looking for quick fixes to student misbehavior.  Rather than preventing behavior problems through proactive discipline policies that focus on positive reinforcement, schools simply remove students who misbehave.

Students and teachers are entitled to a safe learning environment that is conducive to learning, but the environment created by zero tolerance policies is often hostile and dysfunctional.  Schools simply line up on the side of punishing students and students perceive the punishment as irrational, impersonal, and unjustified.  Thus, discipline may not be teaching students the appropriate lesson and it may also create divisions between students and teachers that should not exist. 

 Why are punitive discipline policies and zero tolerance policies, in particular, harmful?

The harm that most parents point to is that zero tolerance policies often result in students receiving harsher punishments than they otherwise would have received.  However, several other harms result, each of which is addressed below. 

     1. Removal from learning environment

Research indicates a negative relationship between the use of school suspension and expulsion and school-wide academic achievement.  Regardless of their behavior or their disciplinary status, all children must have access to quality educational services and instruction.  When they are removed from school, they obviously do not receive these services and instruction.  However, even in-school suspensions or detention can cause students to miss out on instruction.  Although they may receive work in detention, they are often left unsupervised or are monitored only by a school security guard or someone acting in that function.

     2.  Criminalization of Students

When students are suspended regularly for long periods of time or expelled, they are likely to fall further behind academically and are at increased risk of never returning to school at all and/or falling into criminal activity in the community.  If zero tolerance were only imposed for serious misbehaviors, this outcome might seem to be a natural outgrowth of the student’s in school behavior.  Zero tolerance policies, however, apply to a broad range of misbehaviors, both minor and major disciplinary infractions alike.  Because so many behaviors that occur in a normal school are of a relatively minor nature, zero tolerance policies end up being applied more often for minor infractions than serious ones.  These children are removed from school and at-risk of dropping out of school or getting involved in criminal activity even though their initial misbehavior was minor.

Unfortunately, zero tolerance signals a move toward treating children more like adults and in ways that resemble the adult criminal justice system than students who should be educated.  The most irrational aspect of zero tolerance, however, is that it can turn kids into criminals for acts that would rarely constitute a crime when committed by an adult.  Additionally, zero tolerance policies mandating that schools share information on student infractions with law enforcement authorities increase referrals of students to the justice system.  In short, school misbehavior is translated into criminal activity.

     3.  Disproportionate Treatment by Race

Zero Tolerance Policies are also harmful because, with the increased presence of police in public schools, mandatory punishments, and the expanded use of suspensions and expulsions, students of color are being pushed out or thrown out of schools at an alarming rate.  Even without zero tolerance, minority students are disproportionately punished.  However, under a zero tolerance regime, disproportionate punishment becomes disproportionately harsh punishment, most important, suspension and expulsion.  Moreover, with the increased referrals of these disciplinary issues to the juvenile justice system, students of color are more likely to be on the schoolhouse-to-jailhouse track than their white peers, which further increases the disproportionality that already exists there.  Across the board, data shows that black and Latino students are more likely than their white peers to be arrested in school.  Even when controlling for the socioeconomic status of students, the disparity persists.  Moreover, there is no evidence that black and Latino students misbehave more than their white peers.  Thus, the natural inference is that zero tolerance policies, rather than excessive misbehavior by minority students, are producing these disparities.

Are there any limits on zero tolerance policies?

Schools generally have broad discretion when it comes to discipline.  However, zero tolerance policies must comply with the United States Constitution.  Given the unequal effects of zero tolerance policies on students of color, an important limit is that these policies can not violate the Equal Protection Clause of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964.  Thus, zero tolerance policies should not be applied in a discriminatory manner, which occurs if a policy is motivated by race or is applied differently to students based on race.  In some instances, Title VI may also prohibit zero tolerance policies that, although not motivated by race, have a very high disproportionate impact on students of one race and the school cannot justify this result.  The U.S. Department of Justice has recently indicated that it will be evaluating whether discipline policies of this nature violate federal regulations that prohibit educational disparities that lack an educational justification. 

In addition, zero tolerance policies must comply with state constitutions.  As discussed in the educational quality materials, state constitutions guarantee students education and often guarantee a specific level of quality in education.  Thus, some states may require that students have engaged in some serious misbehavior to justify depriving a student of this constitutional right.  For instance, if a zero tolerance policy required expulsion for something minor like profane language, it might be an insufficient justification for depriving a student of his constitutional right to education.  Likewise, it might violate a student’s right to education to transfer him to an alternative school where the quality of education is low, unless the student had engaged in behavior the effectively forfeited his right to a quality education. 

Strategies for Avoiding Zero Tolerance Policies

Because the Fourteenth Amendment requires proof of intent to discriminate, lawsuits challenging the disproportionate effect of zero tolerance policies on minorities are difficult to win.  However, the Department of Education’s Office of Civil Rights (OCR) maintains regulations that prohibit disparate impacts on minorities.  Thus, using the Office for Civil Rights’ complaint process can be another option for addressing the disproportionate impact of zero tolerance policies on students of color.  Any individual who believes school officials have discriminated against them or someone else can file a written complaint with OCR either personally or through a representative.  More information on how to file a complaint with OCR is available at [link to http://www2.ed.gov/about/offices/list/ocr/docs/howto.html].

The best strategy, however, may be to take proactive steps to prevent such policies from being enacted or applied broadly in the first place.  Parents should urge their states and localities to enact laws and provisions that limit zero tolerance to a narrow class of misbehaviors and apply it only to those instances that are equivalent to crimes.  For instance, zero tolerance for weapons should not apply to any conceivable weapon, such as a fingernail file, but only those items that criminal law defines as a weapon.  Similarly, zero tolerance for drugs should apply only to those drugs prohibited by criminal statues, not for “drugs” such as Tylenol and aspirin, which are otherwise legal for students to possess.  Parents should also encourage states to enact disciplinary guidelines for administrators to help them determine how to exercise discretion in discipline rather than resorting to zero tolerance.  If zero tolerance is still enacted, parents should advocate for alternative or less punitive punishments in place of expulsions or suspensions as the zero tolerance punishment.  And, of course, parents should encourage schools to apply zero tolerance punishments equally and avoid applying zero tolerance to behaviors that are more likely to have a disparate impact.  Finally, the best preventative measure is to devote resources to violence prevention rather than punishing students after the fact.

Parents are often concerned that, even if their child has violated a rule, the punishment that a school chooses is too harsh, the wrong type, or that the parents rather than the school should punish the child.  Unfortunately, neither parents nor students have many rights to demand a lesser punishment, but there are some limitations on the punishments a school can impose.  The materials below address these limitations.

Provided that a school has followed the proper due process protections described elsewhere on this website, courts have yet to recognize any constitutional right that would allow a student to avoid being disciplined by his/her school or demand a lesser form of discipline.  The only limitation on the type of discipline that a school can impose is the requirement that the discipline be “appropriate.”  Schools have the authority to punish students in order to provide for the safety and welfare of students, and courts have determined that schools need broad flexibility in disciplining students. Courts will only interfere with a school’s decision of how to discipline a student or the particular form of punishment when a school has either exercised an illegal use of punishment or greatly abused its authority. 

In assessing whether a school has exceeded its authority, courts make three basic inquiries:

1)      Where the student’s misbehavior occurred

2)       Whether the punishment is reasonable based on several circumstances

3)      Whether the punishment is excessive.

Did the misbehavior occur at a school function?

Although there is no absolute ban on disciplining students for conduct that occurs outside of school, a school in most instances cannot punish a student for behavior that occurs outside of school or a school function.  The primary exception to this general principle is when a student’s out of school behavior will likely disrupt the school’s normal functioning or create a danger to other students if that student were to return to school.  Applying this rule has become increasingly difficult because students engage in so many online social networking activities outside of school that some argue have a disruptive effect within school.  Courts have struggled with how to deal with this and other related problems, but it is clear that purely off-campus activity, unless very serious, is rarely a basis for disciplining students at school.

Is the type of punishment reasonable?

School punishment must also be reasonable.  This primarily relates to the type of punishment a school uses: suspensions and expulsions versus corporal punishment, time-out, or some other form of discipline.  There is no nationwide standard for how reasonableness is defined, but parents should be clear that this does not mean that the punishment must be reasonable in the eyes of the parent/s.  ”Reasonableness” is a legal concept that courts have used to assess discipline actions on a case by case fashion.  The factors that courts use to determine whether a punishment is reasonable include:

• the nature and severity of the misconduct;
• the student’s attitude and past behavior;
• the severity of the punishment;
• the availability of less severe, but equally effective means of discipline;
• the school’s motive in imposing the discipline;
• the student’s age and physical condition; and
• in some cases, whether the punishment serves the common good of all students.

Thus, a teacher or school’s method of discipline can be reasonable even if the parents disagree with the particular method.  With that said, discipline would not be reasonable if it is unnecessarily punitive, degrading or likely to cause serious or permanent harm, because such punishment would serve no legitimate purpose.  Nonetheless, various forms of punishment have been justified as having legitimate purpose, including corporal punishment, even though social science may suggest there is no good reason imposing it. 

Often, the form of punishment itself is not unreasonable, but the extent to which it is imposed might be.  For instance, placing a child in “time-out” or isolation or administering corporal punishment is not inherently unreasonable, but if “time-out” or isolation are prolonged or uninterrupted, they might be.  In short, the point is that most forms of discipline may be reasonable.  Only when they become particularly severe or serve no legitimate purpose have courts found them to be unreasonable.

Is the punishment, regardless of its type, excessive?

A similar limitation on punishments is excessiveness.  The issue here is not whether corporal punishment, time-out, or some other form of discipline is prohibited, but whether the punishment was imposed excessively.  If so, the discipline may violate a student’s rights.  The test for whether a punishment is excessive is “whether the force applied caused injury so severe, was so disproportionate to the need presented, and was so inspired by malice rather than merely careless, that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience.”  In short, this standard can be difficult to meet because you would have to prove that the punishment was outrageous and caused harm that was truly shocking.

Discrimination as a Limit on Punishment

As with all actions taken by schools, they cannot impose discipline in a discriminatory manner.  Even if the punishment is not excessive or unreasonable in and of itself, the punishment is prohibited if schools punishing students differently based on race.  This can most clearly occur when students of one race are frequently punished for a particular type of conduct but students of another race are not, such as disrupting class.

However, proving that discipline is discriminatory can often be difficult.  Courts will rarely infer discrimination simply because one white student was not punished for something whereas one African American student was not.  Instead, courts will often require a pattern of unequal treatment to be sure that discrimination is the cause rather than some other reason.  However, if there are particular factors suggesting discrimination, such as comments made by teachers or a particular history of harsh treatment toward a single student, evidence of a pattern may not be required.

While proving a particular act of discipline is discriminatory is difficult, proving that a policy itself is discriminatory can be easier.  For instance, if a school enacts a dress code or hair policy that would allow students of one race to continue to dress and groom themselves in the same way they have in the past, but forces students of another race to make changes, it might be discriminatory.