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Zero Tolerance

The Law

Although the term zero tolerance does not appear in law, the Federal Gun-Free Schools Act of 1994 requires school districts across the United States to pass what came to be labeled zero tolerance policies for firearms in order to remain eligible for funds.1 The Act requires one calendar year of expulsion for any student bringing a firearm to school and referral of the student to law enforcement.

The California Legislature amended Education Code (EC) Section 48915 (c) to fulfill the federal mandate. California law also adds a requirement for the mandatory suspension and the recommendation for expulsion of students who:

• Possess, sell, or otherwise furnish a firearm
• Brandish a knife at another person
• Sell a controlled substance
• Commit or attempt to commit a sexual assault or sexual battery
• Possess an explosive

EC Section 48906 includes the requirement to refer a student with a firearm to law enforcement, and California EC Section 48915 requires the school district governing board to refer students who commit the above acts to an alternative program of study that meets the standards listed within the section.

Rationale for Establishing Zero Tolerance Policies

Given public concern about escalating incidences of school violence, and in the wake of school shootings, school district governing boards adopted zero tolerance policies to send a "get tough" message to the community that violent behavior, incidents, and crime would not be tolerated. Policies were adopted that advised there would be no tolerating more common causes of expulsion, which are listed in EC Section 48915 (a). For these offenses, the law states that the principal or superintendent may find that "expulsion is inappropriate due to the particular circumstance." These significant but discretionary infractions include:

• Causing serious physical injury to another person, except in self-defense
• Possession of any knife or other dangerous object of no reasonable use to the pupil
• Unlawful possession of any controlled substance, except for the possession of not more than one ounce of marijuana
• Robbery or extortion
• Assault or battery on any school employee

These infractions require that the decision to expel a student be based on one of the following findings:

1. Other means of correction are not feasible or have repeatedly failed to bring about proper conduct
2. Due to the nature of the act, the presence of the pupil causes continuing danger to the physical safety of the pupil or others

All other less serious offenses listed in EC Section 48900 also require determination of one of these findings for an expulsion.

The need to determine these findings is what distinguishes zero tolerance expulsions from almost zero tolerance offenses. It should be noted that zero tolerance policies can be established for any and all violations of a school district's discipline code, but when these policies are challenged, state law supersedes school district policy.

In summary, California law has developed three levels of offenses:

1. The most serious zero tolerance infractions for which the principal or superintendent must recommend expulsion and which require no additional findings,
2. The infractions listed for which the principal or superintendent must recommend expulsion unless it is inappropriate because of particular circumstances and which meets to the feasibility finding or danger to self or others finding
3. Offenses that do not require expulsion but for which one of the two findings must be determined before an expulsion can take place

The Administrator Recommendation of Expulsion Matrix outlines when expulsion of a student is deemed mandatory, expected, or discretionary.

What Does Zero Tolerance Tell Us?

Since its inception, zero tolerance has received mixed reactions. Most of the controversy has been created by the methods being used to implement this policy rather than the goals that school districts hoped to achieve by adopting zero tolerance policies.

What appeared to be a catch-all solution has educators going in a lot of different directions. Relatively trivial incidents in a school setting (minor fights, possession of organic cough drops) that receive media attention have given the overall impression that local practice extends zero tolerance beyond its original intent, and school officials are being warned that zero tolerance policies will not stop tragic school shootings like those that occurred in Columbine, Colorado and elsewhere. Additionally, a policy that does not allow school administrators' discretion or consideration may be ruled by the courts as arbitrary and capricious and found to be in violation of a student's due process rights.

Some Suggestions to Consider

In California, governing boards have found that it is important for each school district to align zero tolerance sanctions with state and federal law. Further, the most difficult part of an expulsion hearing is not determining whether the act was committed but whether findings can be made concerning other means of correction or the potential danger to the student or others.

• Monitor disciplinary referrals and keep careful records to ensure that teachers do not overreact or unfairly single out students. Teachers who engage in such practices should be required to take professional development courses in classroom management, child development, and multicultural human relations.

• Require training in classroom management and behavioral issues, including familiarity with legal requirements and their fairness.

• Establish a minimum number of staff development days devoted to classroom management, guidance techniques, and conflict resolution; the classroom management plan should relate to the seriousness of school discipline issues and should be reviewed periodically

• Develop in-school suspension programs to keep students on track with schoolwork and provide counseling, including sessions about behavior modification and conflict resolution. Recent reductions in counseling and social work budgets in many districts should be reversed.3

Additional Resources

For more information about analyses and findings on the effects of zero tolerance policies, visit the following Web sites:

• The Advancement Project and The Civil Rights Project
  Opportunities Suspended: The Devastating Consequences of Zero Tolerance and School Discipline Policies, a report by the Advancement Project and the Civil Rights Project, Harvard University, 2000.
• Zero Tolerance, Zero Evidence Policy Research Report #SRS2
  Indiana Education Policy Center, August 2000.
• The Dark Side of Zero Tolerance: Can Punishment Lead to Safe Schools?
  Skiba, Russ and Peterson, Reece; Phi Delta Kappa International, January 1999. (Search: Publication Archives)

Alternatives to Suspension

More information about alternatives to suspension is available in the publication and the EC sections noted below:

Suspension/Expulsion Handbook, Appendix B, Association of California School Administrators (ACSA), January 2000.

EC Section 48900.1. Attendance of suspended pupil's parent/guardian for a portion of the school day

1. Authorizes teachers to provide that the parent/guardian attend a portion of the school day in his or her child's classroom [i.e. applies to Section 48900 (k) only].

EC Section 48900.6. Community service on school grounds during non-school hours

The principal/designee may require a pupil to perform community service on school grounds during non school hours. Community service may include work performed on school grounds in the areas of outdoor beautification, campus betterment, and teacher or peer assistance programs. This section does not apply if the article requires suspension or expulsion.

EC Section 48911.1. Supervised suspension classroom

1. Alternative for sections 48900 and 48900.2 violations if the pupil poses no imminent danger or threat to the campus, pupils, staff, or if an action to expel the pupil has not been initiated.
2. Pupils assigned to the supervised suspension classroom shall be separated from other pupils at the school site in a separate classroom, building, or may be assigned to a separate site, specifically for pupils under suspension.
3. Apportionments may continue to be claimed if:
   1. the classroom is staffed as otherwise provided by law;
   2. each pupil has access to appropriate counseling services;
   3. the intent of the class is to promote completion of schoolwork and tests missed during the suspension
   4. each pupil is responsible for contacting teacher(s) to obtain assignments. The teacher(s) shall provide all assignments and tests that the pupil will miss while suspended.
4. The pupil's parent/guardian shall be notified, in person or by telephone, that the pupil was assigned to the supervised suspension classroom. If the pupil is assigned to the class for longer than one class period , the parent shall be notified in writing.
5. This alternative does not place any limitation on the district's ability to transfer a pupil o an opportunity school or class or a continuation education school or class.
6. Apportionments claimed by the district for pupils assigned to the supervised suspension classroom shall be used specifically to mitigate the costs of implementing this section.

EC Section 48911.2. Alternatives to off-campus suspension

This section emphasizes a progressive discipline approach that may include:

• Conferences between school staff, parents, and pupils;
• Referral to school counselor, psychologist, child welfare attendance personnel, or other school support service staff;
• Detention
• Study teams, resource panel teams, or other assessment-related teams.

EC Section 48903. Opportunity school or class

"A pupil may enroll or be transferred to an opportunity school or class for purposes of adjustment. When such a transfer occurs, the total number of days the pupil may be suspended shall not exceed 30 days in any school year."

EC sections 48660-48666. Community Day School Programs

EC Section 48915.01. Expulsion Rehabilitation Plan Referral

The governing board may establish a community day school for expelled pupils and does not have to meet the requirement of a separate site for :

• Pupils in Kindergarten through grade six if the governing board certifies that no other satisfactory alternative facility is available [EC Section 48661 (a)]
• Pupils in grades seven through twelve if the county superintendent of schools certifies that no alternative program of study is available [EC Section 48915 (f)]

The same certification option is available for pupils in grades seven through twelve for school districts with 2,500 pupils or less. [EC Section 48661 (a)]

1. U.S. Department of Education, reauthorization of the Elementary and Secondary Education Act of 1965 (ESEA), Public Law 103-382, Section 8921, Title 20, U.S. Code.
2. Opportunities Suspended: The Devastating Consequences of Zero Tolerance and School Discipline Policies, Report by the Advancement Project and the Civil Rights Project, Harvard University, 2000.
3. Ibid.