Simone Lawson
Zero-tolerance policies are common in formal and informal policing systems worldwide, as well as in schools, workplaces, and the military. They are characterised by full enforcement, lack of prosecutorial discretion, strict constructivist interpretation, and harsh punishment. In the United States, zero tolerance was originally designed as part of the War on Drugs under the Reagan and Bush administrations. It was also adopted in schools in the 1990s in response to school shootings and general fears about crime. While zero-tolerance policies aim to create safer learning environments, critics argue that they violate constitutional rights to due process and lead to high suspension and expulsion rates, which push students towards the juvenile justice system. This raises the question: do zero-tolerance policies go against the US Constitution?
| Characteristics | Values |
|---|---|
| Full enforcement | All those with adequate evidence of rule violation are punished |
| Lack of prosecutorial discretion | No changing punishments to fit the circumstances |
| Strict constructivist interpretation | No room for narrow interpretation of the rule |
| Harsh punishment | Relatively harsh mandatory minimum penalty |
| Punishment for every infraction | Predetermined punishment, regardless of individual culpability |
| Dichotomy between legality of use and no use | All illicit drugs are undesirable and harmful to society |
| War on Drugs | Targeting drug users under Reagan and Bush administrations |
| Criminal prosecution of unauthorised border entries | Trump administration's zero-tolerance policy |
| Separation of children from prosecuted adults | Violation of children's rights to education |
| Due process | No authority to strip students of their constitutional rights |
| Equal protection | Fifth Amendment prohibits discrimination |
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What You'll Learn
Zero tolerance policies and the right to education
Zero-tolerance policies, which allow schools to expel or suspend students who possess a "weapon" on school grounds, have been criticised for depriving children of their right to education. This is particularly true for unaccompanied minors, who are often not provided with adequate educational services in federal shelters. The Trump administration's 2018 Zero Tolerance Policy, which led to the separation of children from their parents at the US-Mexico border, is a notable example of how these policies can conflict with the right to education.
The right to education is considered fundamental and protected by the US Constitution, as interpreted by the Supreme Court. This right is derived from the Fourteenth Amendment's Equal Protection and Due Process Clauses, which guarantee that all students have the opportunity to obtain an education that prepares them to be capable citizens. However, zero-tolerance policies can infringe on this right, especially when expulsion or suspension decisions are not subject to objective review mechanisms.
In the aftermath of the Zero Tolerance Policy, there have been calls for a constitutionally recognised right to education to ensure that unaccompanied minors receive the educational services guaranteed to them under federal law. This proposal argues that the Supreme Court should rule that the right to education is fundamental, allowing for stricter scrutiny of any state or federal actions that infringe on this right.
One example of the failure to provide adequate educational services to unaccompanied minors is the situation in Texas. While Texas school districts could voluntarily provide services to these minors, declining school funds have made it challenging to continue offering these services. As a result, unaccompanied minors affected by the Zero Tolerance Policy, who remain in custody for extended periods, often lack access to education.
The lack of educational services for unaccompanied minors in federal shelters has been criticised as failing to meet the necessary standard to require constitutional protection. This further highlights the need for a recognised right to education to ensure that all children, regardless of their circumstances, have access to quality educational opportunities.
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Zero tolerance and the right to due process
Zero-tolerance policies are common in formal and informal policing systems worldwide, as well as in schools, workplaces, and the military. They are studied in criminology and were originally designed as part of the War on Drugs under the Reagan and Bush administrations. The idea was that by targeting drug users with harsh sentences and strict enforcement, demand would decrease, thus tackling the root cause of the drug problem.
A zero-tolerance policy is one that imposes a punishment for every infraction of a stated rule. People in positions of authority are forbidden from exercising discretion or changing punishments to fit the circumstances. They are required to impose a predetermined punishment, regardless of individual culpability, extenuating circumstances, or history.
In the context of schools, zero-tolerance policies were developed in the 1990s in response to school shootings and general fears about crime. The Gun-Free Schools Act of 1994, for example, requires schools to expel any student who brings a gun to campus. However, zero-tolerance policies in schools have been criticised for failing to make schools safer and for contributing to high suspension and expulsion rates. Research has shown that suspending students makes them more likely to drop out of school and become involved in the juvenile justice system.
Zero-tolerance policies in schools have also been criticised for violating students' constitutional rights to due process. While the constitution gives schools significant discretion to regulate student behaviour, this does not include the authority to strip students of their constitutional rights. Fundamental principles of substantive due process limit zero tolerance. For example, substantive due process prohibits state actors from treating dissimilarly situated students as though they are the same, disregarding a student's good-faith mistakes or innocence, and presupposing the answers to due process inquiries.
If a parent believes that a school's zero-tolerance policy violates their child's constitutional rights to due process, they can seek legal advice from an attorney experienced in civil rights or education law.
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Zero tolerance and the War on Drugs
Zero tolerance is a criminal justice approach to drug control. It is a "user-focused" strategy, where law enforcement targets users of illicit drugs rather than dealers or transporters. The rationale is that users create the demand for drugs and are the root cause of the drug problem. The policy aims to curb demand by imposing harsh penalties on users, thereby slowing the supply of drugs into a country.
The term "zero tolerance" was first used by the Reagan administration in the 1980s during its War on Drugs initiative. The policy was designed to stop drug trafficking across the US-Mexico border. Since then, zero tolerance has been used in the context of drunk driving, with many US states adopting a zero-tolerance approach, setting a lower illegal blood alcohol content for drivers under the age of 21. Belgium, Finland, France, Germany, and Sweden have also implemented zero-tolerance laws for drugs and driving.
Critics argue that zero tolerance leads to a perception of "too much being done." The fear of harsh penalties may lead to a decrease in reports of illegal behavior, as individuals may be less likely to come forward. Additionally, critics contend that zero tolerance policies in schools produce harmful results, with administrators failing to use common sense in their application, leading to the expulsion of students for minor infractions.
The success of zero-tolerance drug policies has been disputed. While Sweden's unrelenting approach towards drug users, coupled with generous treatment opportunities, has been cited as a reason for the country's relatively low drug prevalence rates, alternative arguments suggest that the decrease in crime was due to economic and demographic factors rather than police work.
In recent years, the Trump administration implemented a Zero Tolerance Policy for illegal entries into the United States, resulting in the criminal prosecution of all apprehended unauthorized adults and the forced separation of their accompanying children. This policy has raised concerns about the fundamental right to education, as unaccompanied minors in federal shelters lack access to adequate educational services.
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Zero tolerance in schools
Zero-tolerance school discipline policies, which mandate suspension or expulsion for student misconduct, have become increasingly common in middle and high schools since the 1980s. These policies are often criticised for their strict and rigid nature, removing common sense and individual circumstances from the equation. For instance, a student with no disciplinary history or questionable behaviours who turns in a knife they found or accidentally brought to school could still face expulsion under zero-tolerance rules.
The constitutionality of zero-tolerance policies in schools has been questioned. While the US Constitution does grant schools significant discretion to regulate student behaviour, critics argue that this does not include the power to strip students of their constitutional rights and punish them arbitrarily. Zero-tolerance policies are said to breach fundamental principles of substantive due process, which prohibits treating dissimilarly situated students as the same, disregarding good-faith mistakes or innocence, and rendering due process inquiries meaningless.
Additionally, zero-tolerance policies have been scrutinised for their disproportionate impact on minority students, with middle schools expelling Black students at four times the rate of white students and Latino students at double the rate. The negative consequences of zero-tolerance policies can be life-long, severely limiting a young person's future potential. Research also suggests that positive reinforcement is more effective than punitive measures, and that behavioural problems should be addressed on a case-by-case basis.
The Trump Administration's Zero Tolerance Policy for illegal entries into the United States in 2018 provides a stark example of the potential consequences of such an approach. This policy resulted in the forced separation of children from their families, raising concerns about the denial of the right to education for unaccompanied minors.
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Zero tolerance and the right to equal protection
Zero-tolerance policies have been a topic of debate in the United States, with critics arguing that they violate the principles of health and human services and the standards for the education and healthy growth of children, families, and communities. These policies, which impose a predetermined punishment for every infraction of a stated rule, have faced scrutiny for neglecting investigation on a case-by-case basis and potentially leading to excessive penalties for minor crimes.
The concept of zero tolerance, first recorded in US politics in 1972, grants the police carte blanche to repress minor offenses, often associated with the homeless, and disorders stemming from them. Critics argue that this approach redefines social issues as security threats, labels the poor as criminals, and narrows the focus to street crimes, excluding white-collar crimes. While proponents claim that zero tolerance reduces crime, scientific studies have found little evidence to support this assertion.
The right to equal protection, as interpreted from the Fifth Amendment, plays a crucial role in ensuring that federal actions do not conflict with substantive due process. The Fifth Amendment states that no person shall "be deprived of life, liberty, or property, without due process of law." The Doctrine of Reverse Incorporation further reinforces that this amendment encompasses equal protection, as highlighted in Bolling v. Sharpe (1954).
In the context of zero-tolerance policies, the right to equal protection raises concerns about the lack of discretionary power granted to authorities in imposing punishments. By forgoing subjective evaluation of individual culpability, extenuating circumstances, and history, zero-tolerance policies may inadvertently lead to disproportionate penalties and a failure to address the underlying complexities of each case.
The interplay between the right to education and equal protection has also been examined in the aftermath of zero-tolerance policies. The inadequate educational services provided to unaccompanied minors in federal shelters, as a result of the Trump administration's zero-tolerance policy for illegal entries in 2018, sparked debates about the fundamental right to education. This policy led to the criminal prosecution of unauthorized adults and the forced separation of their children, who were then placed in federally run shelters. The living conditions and educational rights of these unaccompanied minors became a focal point of discussion, prompting proposals for a constitutionally recognized right to education.
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Frequently asked questions
A zero-tolerance policy imposes a punishment for every infraction of a stated rule. Zero tolerance forbids people in positions of authority from exercising discretion or changing punishments to fit the circumstances. Instead, they are required to impose a predetermined punishment regardless of individual culpability, extenuating circumstances, or history.
The US Constitution states that no person shall be deprived of life, liberty, or property without due process of law. Zero-tolerance policies breach this by stripping students of their constitutional rights and punishing them for any reason deemed fit by the school.
If a parent believes that a school's zero-tolerance policy is unconstitutional, an attorney experienced in civil rights or education law should be able to explain any legal options that may be available, including the possibility of suing the school district.
