Zero Tolerance Policies: Courts Turn a Blind Eye

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Students do not enjoy a Constitutional right to a free education. Nonetheless, in Goss v. Lopez, the Supreme Court held that students are entitled to the Fourteenth Amendment’s due process protections when they are suspended or expelled from school.

The Fourteenth Amendment includes both procedural due process and substantive due process. The first requires specific steps to be followed when taking certain protected rights from individuals, while the latter considers the interests at stake to decide whether the government action is an appropriate means to address the concern at hand. Because school officials are considered state agents, they are bound by the Fourteenth Amendment.

Goss v. Lopez represented a significant win for recognizing students’ rights. The Court found that independent sources—such as state regulations and compulsory attendance policies—could create a property right for students. Moreover, the Court reasoned that extraction from the classroom could tarnish a student’s reputation and consequently hurt her long-term opportunities. As a result, the Court decided that when a student is suspended or expelled for ten days or less, she must be given oral or written notice as well as a potential hearing.

In spite of this symbolic triumph, Goss v. Lopez has proved to be of little help in questioning the validity of zero tolerance rules. Many times zero tolerance regulations mandate a student be automatically extracted from her classroom for certain outlined misbehaviors. Although these policies provide school administrators little discretion in deciding the most appropriate punishment for a student’s misconduct, courts have found that zero tolerance policies meet the rational relation requirement. Thus, as long as an administrator goes through the motions of providing a student notification and a hearing—which is unlikely to change the outlined consequence demanded by a zero tolerance regulation—challenges to these policies will likely fail. Furthermore, Courts’ hesitancy to conduct a fact-finding investigation of a school’s disciplinary measures is attributed to a historic deference to schools’ judgment, a student’s lack of a fundamental right to an education, and—in the case of federal courts—a state’s established role as the overseer of public education.

Yet encouraging courts to take a more active role in examining the soundness of zero tolerance policies could be an effective tool in ensuring a student only loses out on valuable education time when their misconduct poses a sufficient danger to warrant this drastic measure. The real challenge, thus, is finding a way to provide courts with the necessary courage to take on this charge.

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