By Derek W. Black. Full text here.
With the introduction of modern zero tolerance policies and harsh approaches to discipline, schools now punish much more behavior than they ever have before. The underlying problem is that not all behavior for which schools are expelling and suspending students is bad or serious. Schools have expelled the student who brings aspirin or fingernail clippers to campus, who does not know that a keychain knife is in his backpack, who takes away a knife from another student in order to keep everyone safe, or who occasionally interrupts class with immature behavior. Courts have upheld the suspension and expulsion of these and other students, even when the behavior is in good-faith and innocuous. With little explanation, courts have opined that the Constitution places no meaningful limit on discipline policies. Indeed, courts have been so dismissive of constitutional challenges that most scholars all but concede the constitutionality of zero tolerance, arguing instead that schools should voluntarily adopt policy changes. This is incorrect.
Although the Constitution confers significant discretion on schools to regulate student behavior, their discretion does not include the authority to strip students of their constitutional rights and punish them for any reason a school deems fit. This Article argues that fundamental principles of substantive due process limit zero tolerance and harsh discipline policies. In particular, substantive due process prohibits state actors from (1) treating substantially dissimilarly situated students as though they are the same; (2) disregarding a student’s good-faith mistakes or innocence; and (3) presupposing the answers to due process inquiries so as to render disciplinary hearings meaningless. Zero tolerance policies and harsh discipline breach each of these principles and represent a broad overreach of state power, akin to the sort of state overreaching that the Supreme Court has struck down in other areas of juvenile justice. To comply with due process, the state must consider a student’s intent and culpability, along with the potential harm posed by a student’s behavior. Contrary to conventional wisdom, courts can strike down zero tolerance policies and harsh discipline that fail to take these steps without re-crafting constitutional doctrine.