ONE STRIKE AND YOU'RE OUT? CONSTITUTIONAL CONSTRAINTS ON ZERO TOLERANCE IN PUBLIC EDUCATION

Eric Blumenson
Suffolk University Law School

Eva Nilsen
Boston University School of Law

Boston University School of Law Working Paper 02-22

Abstract

Following a spate of school shootings in the '90's and academic concerns about increasing juvenile violence, school districts throughout the country have adopted what is commonly known as a "zero-tolerance" policy. Reversing long-standing campaigns aimed at keeping children at risk in school, the new policy seeks to identify troublesome students and get them out of school. Zero tolerance imposes expulsion or suspension for a wide range of misconduct that previously would have been dealt with through lesser sanctions such as detention, or remedial efforts such as counseling. The most recent available national totals show that in 1998 more than 3.1 million children were suspended from school.

The article assesses both the consequences of zero tolerance discipline in public schools and its constitutionality. After examining the as-yet-unresolved status of educational rights in the federal constitution, we explore a number of reasons why expulsions from the public school system may be constitutionally impermissible. We conclude that "expulsions to nowhere" are particularly vulnerable to legal challenges based on federal and state constitutional rights to equal protection, as well as enumerated rights to education that exist in state constitutions.

This article is the second in a project we have undertaken examining the use of educational deprivation as a form of punishment. The first article, How to Create an Underclass, or How the War on Drugs Became a War on Education, 6 UNIV. OF IOWA JOURNAL OF GENDER, RACE AND JUSTICE 61 (2002), inventories the increasing of educational deprivation sanctions at all levels of education, with particular emphasis on the consequences and legality of the federal law that denies college loans to drug offenders.




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Eric Blumenson Contact Information:

eblumens@suffolk.edu
Suffolk University Law School
120 Tremont Street,
Boston, MA 02108-4977
(617) 305-1967 (Phone)
(617) 305-3087 (Fax)

Eva Nilsen Contact Information:

esnilsen@bu.edu
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215
(617) 353-4255 (Phone)

SSRN Site:

http://ssrn.com/abstract=352181

Presentation and Publication Information:

81 Washington University L.Q. ___ (forthcoming, 2003)

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