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Lynn Brown Authors, “Zero Tolerance Rules: Constitutionally Bullet-Proof?” for the Nassau Lawyer

Publication Source: Nassau Lawyer

Brown_LynnVirtually every school district has rules concerning students’ conduct that simply will not be tolerated.  These so-called “zero tolerance” rules were originally developed in the 1990’s to address the ever-growing drug and gun problem in schools.1 Often found in the district’s Code of Conduct, these rules concern speech or conduct that is violent, otherwise endangers the safety or welfare of others (e.g., possessing weapons, alcoholic beverages or illegal drugs) or is deemed indecent (e.g., nudity and sexual activity).2
Most school districts’ Codes of Conduct state that students engaging in these activities may be disciplined, up to and including long-term suspensions from school.  In fact, however, for the majority of students, these offenses typically result in out-of-school suspensions, often for weeks or months, without regard to the severity of the infraction, the particular facts giving rise to the offense, or mitigating circumstances.3
Further, school districts can and do apply their zero tolerance rules to speech or conduct that happens off school grounds to the extent such “adversely affect[s] the educative process or endanger[s] the health, safety or morals for pupils within the educational system for which the school authorities are responsible.”4 Thus, students engaged in prohibited but “off campus” speech or conduct are not beyond the reach of these rules.
While out of school suspensions remove dangerous students from schools, suspensions pursuant to zero tolerance rules have increasingly come under fire for several reasons, including because “good” students are removed from school sometimes for relatively trivial infractions resulting from mistakes in judgment typical of school-age children.5 Regardless of whether this criticism ultimately results in a change of policy, zero tolerance rules are now routinely enforced and, as set forth below, relatively impervious to constitutional attack.
Disciplinary actions taken on the basis of zero tolerance rules have been challenged on a variety of constitutional grounds, including under the First, Fourth, Fifth and Fourteenth Amendments.  While it is well established that public school students do not shed their constitutional rights “at the schoolhouse gate,”6 the rights of public school students “are not automatically coextensive with the rights of adults in other settings.”7 As a result, for the most part, constitutional challenges to zero tolerance rules have been unavailing.8
Zero tolerance rules have been found not to violate the First Amendment.  To the contrary, school administrators may prohibit speech that “materially or substantially interferes with the requirements of appropriate discipline in the operation of the school,” or that would “substantially interfere with the work of the school or impinge upon the right of other students.”9 Schools may also prohibit speech that is inconsistent with their “basic educational mission,” even when the same speech may not be prohibited outside the school.10 To the extent a school is a non-public forum, its limitations on student speech need only be “reasonable and viewpoint neutral.”11
Applying these standards, school districts were found not to have violated students’ First Amendment rights by suspending a sixth grader for thirty days on the basis of a creative writing assignment “with its graphic depictions of a child brutally murdering his classmates,” or suspending an older student for approximately two months on the basis of a racially-charged comment.12
Zero tolerance rules have also survived Fourteenth Amendment challenges.  While long term suspensions for relatively minor infractions are often alleged to be “excessive” and/or “arbitrary and capricious,” thereby violating a student’s right to substantive due process, the United States Supreme Court has held that “[o]nly the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense.’”13 Further, the Supreme Court has “repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.”14 As a practical matter, this means that long term suspensions meted out pursuant to zero tolerance rules – including suspensions of approximately ten months based on possession of marijuana and drug paraphernalia15 and more than one year for inciting a riot16 – have been sustained as within the school districts’ discretion.17
To the extent a student claims that he or she was denied procedural due process based upon the recognized protected right to a public education,18 such claims are likely to be successful only in cases where the student establishes that he or she failed to receive the requisite notice and opportunity to be heard as established by federal law.19 Failure to provide the requisite notice and opportunity to be heard as required by New York State Education Law §3214 will not support a federal procedural due process claim.20
Zero tolerance rules are often applied following a search of a student’s person or of his locker, raising Fourth Amendment implications.  But, here, too, zero tolerance rules have passed constitutional muster. Although the Fourth Amendment applies to searches conducted by public school officials,21 school officials are afforded greater latitude with respect to such searches on the ground that they have an interest in “maintaining security and order” in their schools.22 Searches are justified where there “are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.”23 In determining whether a search is reasonable, courts consider whether the search was justified at the inception and if the search “as actually conducted ‘was reasonably related in scope to the circumstances which justified the interference in the first place.’”24
Applying this test, suspensions based upon “minimally invasive” searches (like where a student is asked to empty his pockets) were found constitutionally permissible where students acted “high,”25 smelled of marijuana,26 and where a student was in the school parking lot in violation of school rules, looked nervous, and was wiping his nose and rubbing his eyes.27 Attacks on zero tolerance rules as violating students’ equal protection rights also have proved unsuccessful. The courts have rejected such constitutional challenges either because they found that the student failed to demonstrate he or she was treated differently from other students, or, applying a “class of one” analysis, failed to establish that the school district intentionally treated the disciplined student differently from similarly situated students.28

In sum, as established by these cases, and regardless of whether they are good policy, zero tolerance rules are unlikely to be stricken on constitutional grounds.   For the most part, constitutional challenges to these rules, whether they be under the First, Fourth, Fifth, or Fourteenth Amendments, have been unsuccessful.

1 American Psychological Ass’n Zero Tolerance Task Force Report: “Are Zero Tolerance Policies Effective in the Schools? An Evidentiary Review and Recommendations” (Aug. 9, 2006) at 2, 19; Blumenson, E. & Nilsen, E.S., “One Strike and You’re Out? Constitutional Constraints on Zero Tolerance in Public Education,” 81 Wash. U.L.Q. 65 (Spring 2003) at 65-66.

2 For example, the Garden City School District Code of Conduct (posted on its website) subjects students to discipline for: “possessing a weapon or other object which is not necessary for school activities and which could be used as a weapon;” “possessing, consuming, selling, distributing or exchanging alcoholic beverages or illegal substances, or being under the influence of either,” and “indecent exposure, that is, exposure to sight of the private parts of the body in a lewd and indecent manner.”  Garden City Public Schools Code of Conduct, Section 5300.25 at D(3) and E.(12) and (15).

3 Blumenson, E. & Nilsen, E.S.supra, at 69.

4 Cohn v. New Paltz Cent. Sch. Dist., 363 F.Supp.2d 421, 436 (N.D.N.Y. 2005), citing Matter of Rodriguez, 8 Ed.Dept. Re. 214, 216-17.

5 American Psychological Ass’n Zero Tolerance Task Force Report, supra, at 19.

6 Tinker v. Des Moines Indep. Comty. Sch. Dist., 393 U.S.503, 506 (1969).

7 Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 682 (1986).

8 See J.E. ex rel. Edwards v. Center Moriches Union Free Sch. Dist., 898 F.Supp.2d 516, 538 (E.D.N.Y 2012) (“[t]he threshold for establishing a constitutional tort in a school environment is high”).

9 Tinker v. Des Moines Indep. Comty. Sch. Dist., supra, 393 U.S. at 503; D.F. ex rel. Finkle v. Board of Educ. of Syosset Cent. Sch. Dist., 386 F.Supp.2d 119, 125 (E.D.N.Y. 2005), citing, Smith v. Mount Pleasant Pub. Sch., 285 F.Supp.2d 987, 993 (E.D. Mich. 2003).

10 Bethel Sch. Dist. v. Fraser, supra, 478 U.S. at 685.
11 Make the Rd. by Walking, Inc. v. Turner, 378 F.3d 133, 143 (2d Cir. 2004).
12 DeFabio v. East Hampton Union Free Sch. Dist., 623 F.3d 71, 77-80 (2d Cir. 2010).
13 County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998), quoting
Collins v. Harker Heights, 503 U.S.115, 129 (1992).
14 Tinker v, Des Moines Indep. Comty. Sch. Dist, supra, 393 U.S. at 507.
15 Binder v. Cold Spring Harbor Cent. Sch. Dist., No. CV 09-4181(SJF)(ARL), 2010 WL 3257708 at *7 (E.D.N.Y. Jul. 19, 2010)(Report & Recommendation).
16 J.E. ex rel. Edwards v. Center Moriches Union Free Sch. Dist., supra, 898 F.Supp.2d at 537-42.
17 See also DeFabio v. East Hampton Union Free Sch. Dist., supra, 623 F.3d at 80-83 (School District’s decision to expel student for the remainder of school year was not arbitrary or irrational); D.F. ex rel. Finkle v. Bd.of Educ. of Syosset Cent. Sch. Dist., supra, 386 F.Supp.2d at 127 (sustaining 30 day suspension); Cohn v. New Paltz Cent. Sch. Dist., supra, 363 F.Supp.2d at 434 (“Plaintiff’s conversing with fellow students about handguns and subsequently obtaining possession of a handgun constituted a ‘material and substantial disruption of the educational process’ worthy of [several month] suspension”).  But see Biswas v. City of New York, 973 F.Supp.2d 504 (S.D.N.Y. 2013) (declining to dismiss substantive due process claim against Board of Education defendants because the court treated as true, for purposes of the motion, plaintiff’s claim that the defendants knowingly suspended her on the basis of fabricated evidence).
18 Goss v. Lopez, 419 U.S. 565, 576 (1975).
19 See DeFabio v. East Hampton Union Free Sch. Dist., supra, 623 F.3d at 80 (holding that the procedures afforded plaintiffs in connection with the student’s initial and long term suspensions satisfied student’s due process rights); D.F. ex rel. Finkle v. Bd.of Educ. of Syosset Cent. Sch. Dist., supra, 386 F.Supp.2d at 126-27 (student’s due process rights were not violated; notice of charges were sufficiently specific, his hearing was held on adequate notice; and he presented a defense with counsel, even if the identity of the students who testified against him).
20 Mac Ineirghe v. Bd. of Educ. of E. Islip Union Free Sch. Dist., No. 05 Civ. 4324(JFB)(AKT), 2007 WL 2445152, at *19 (E.D.N.Y. Aug. 22, 2007) (plaintiffs’ due process rights were not violated; “[a]lthough plaintiffs were not afforded the process described under N.Y. Educ. Law §3214, plaintiffs were afforded the process due under the Constitution”).
21 Binder v. Cold Spring Harbor Cent. Sch. Dist., supra,  2010 WL 3257708 at *5.  See Phaneuf v. Fraikin, 448 F.3d 591, 597 (2d Cir. 2006) (“as the intrusiveness of the search of a student intensifies, so too does the standard of Fourth Amendment reasonableness),” quoting Cornfield by Lewis v. Consol. High Sch. Dist., No. 230991 F.2d 1316, 1321 (7th Cir. 1993).
22 New Jersey v. T.L.O., 469 U.S. 325, 340. (1985).
23 Id. at 342.
24 Binder v. Cold Spring Harbor Cent. Sch. Dist., supra,  2010 WL 3257708 at *5, quoting New Jersey v. T.L.O., 469 U.S. 325, 341 (1985), quoting Terry v. Ohio, 392 U.S. 1, 20 (1967).
25 Faber v. Monticello Cent. Sch. Dist., No. 10-CV-01812 (ER), 2013 WL 2450057 (S.D.N.Y. June 6, 2013).
26 Binder v. Cold Spring Harbor Cent. Sch. Dist., supra,  2010 WL 3257708.
27 Mac Ineirghe v. Bd. of Educ. of E. Islip Union Free Sch. Dist., supra, 2007 WL 2445152, at *10.
28 J.E. ex rel. Edwards v. Center Moriches Union Free Sch. Dist., supra, 98 F.Supp.2d at 548-550; DeFabio v. East Hampton Union Free Sch. Dist., 658 F.Supp.2d. 461, 494-97 (E.D.N.Y. 2009), aff’d, 623 F.3d 71 (2d Cir. 2010) But see Cohn v. New Paltz Cent. Sch. Dist., supra, 363 F.Supp.2d at 439 (declining to dismiss equal protection claim on motion pursuant to Fed.R.Civ.P. 12(c).