Zero Tolerance for Zero Tolerance in Massachusetts

by Melanie Jane Debrosse

Public policy towards children has moved towards treating them more like adults and in ways that increasingly mimic the adult criminal justice system. The most recent version of this movement is so-called “zero tolerance” in schools, where theories of punishment that were once directed to adult criminals are now applied to first graders.[1]

Zero tolerance is a punitive and exclusionary attitude towards school discipline. With regard to education, zero tolerance policies stemmed from federal and state drug enforcement agencies in the 1980s as part of a get tough on crime mentality.[2] As a result of the rise in school violence, zero tolerance has been used with regard to school discipline procedures. Massachusetts has enacted two laws dealing specifically with this issue. M.G.L. c. 71 §37H and 37H 1/2 grants broad discretion to school officials in disciplinary matters and provides for the mandatory expulsion, after a hearing, of a student found in possession of a weapon or drugs at school, or during a school-sponsored or school-related event. The school principal is given discretion to use suspension, instead of expulsion, where the official determines that the student is not a threat to the safety, security, and welfare of the staff and other students. The enactment in Massachusetts of these two laws has led to a number of expulsions, with principals rarely exercising their discretion to suspend, rather than expel, the students found in possession of the proscribed items.[3] However, should a principal decide to expel rather than suspend the student, “[N]o school or school district within the commonwealth shall be required to admit such student or to provide educational services to said student.”[4]

Such harsh policies may be linked to a disproportionate number of minority students being expelled from schools. Harvard University’s Advancement Project and Civil Rights Project June 2000 report, Opportunities Suspended: The Devastating Consequences of Zero Tolerance and School Discipline Policies notes that “ [t]hese policies require that children in kindergarten through 12th grade receive harsh punishments, often for minor infractions that pose no threat to safety, and yet cause them and their families severe hardship. A strong body of com- pelling research indicates that these ‘get-tough’ disciplinary measures often fail to meet sound educational principles and, in many cases, their application simply defies common sense….Often African-American, Latino, and disabled children bear the brunt of the consequences of these policies.[5]

In Massachusetts, African American students are over six times more likely to be [expelled and] excluded than are White students: the exclusion rate for African American students was 6.1 and for White students was 1.0 in 2002-2003, according to the Massachusetts Department of Education’s (DoE) Report of Student Exclusions, 2002-03, the latest paper available from the DoE reporting information about student exclusions in Massachusetts public schools. In fact, exclusion rates by race/ethnicity between 2000 and 2003 have shown that African American and Hispanic students are excluded at much higher rates than other groups in Massachusetts.[6] Per the DoE report, a student exclusion is defined as the removal of a student from participation in regular school activities for disciplinary purposes for more than ten consecutive school days. This removal could be permanent or indefinite.

Couple these statistics with the current state of the law in Massachusetts that effectively bars students from being accepted into a public school should they be expelled and one can see why many have dubbed the effect of zero tolerance as a “school to prison pipeline”. Once these students are released into society with an abrogated education, their prospects for attaining employment are at best bleak. It should come as no surprise if many of these children turn to criminal activity. Instead of focusing on a more rehabilitative approach for these children, zero tolerance policies seem to push them out without taking any steps to solve the underlying problem. “When we say students will be expelled for one incidence of violence, we seem to forget that making them ‘disappear’ from school does not make them disappear from society. They go somewhere and their time on the street is rarely productive.”[7]

The research suggests that breaking the cycle of violence in school must begin with long-term planning aimed at fostering nonviolent school communities. This approach relies on prevention and planning.[8] This would include prevention efforts, such as conflict resolution, behavior management, screening and early identification of troubled children, and implementing effective discipline plans to deal with disruptive behaviors.[9]

Given the broad discretionary power given to school officials and the intensely punitive nature of the current state of laws here in Massachusetts, many children run the risk of having their education stolen from them based on preconceived and at times culturally insensitive notions that will permanently affect their lives. There must be more protections in place with regard to the seemingly unfettered discretion of school authorities to deem a student in violation of the current laws. This approach treats students as though they are in an adult criminal justice system, rather than within a school system. It is understandable that certain violations demand protection of the school community as a whole, but school administrators must have specific guidelines to prevent potential abuse of discretion.

Melanie Jane Debrosse is a 2007 graduate of Thomas M. Cooley Law School. She has provided research for the Massachusetts Appleseed Center for Law & Justice.

1 ABA Juvenile Justice Policies: Zero Tolerance Report available at

http://www.abanet.org/crimjust/juvjus/zerotolreport.html.

2 Mass. Appleseed Center for Law and Justice, Keep Kids in Class: Breaking the School to Prison Pipeline.
3 ABA Juvenile Justice Article: Weapons in Schools and Zero Tolerance available at:

http://www.abanet.org/crimjust/juvjus/cjweapons.html.

4 M.G.L. c 71 37H(e)
5  Opportunities Suspended: The Devastating Consequences of Zero Tolerance and School Discipline Policies. Harvard University’s Advancement Project and Civil Rights Project. Cambridge, MA. June 2000.
6 Report of Student Exclusions, 2002-03. Malden, MA: Massachusetts Department of Education’s (DoE), 2004. p. 2.
7 Gloria Ladson-Billings, “America Still Eats Her Young” in Zero Tolerance, p. 80.
8 Stacy Ellen Rossi, From Zero To Infinite Tolerance: An Examination of Exclusion Rates in Massachusetts Public Schools, p. 53.
9 Roger Ashford, “Can Zero-Tolerance Keep Our Schools Safe?” (November 2000).