43 Pages Posted: 25 Jun 2014 Last revised: 28 Jul 2014
Date Written: June 24, 2014
Zero tolerance policies were adopted in response to tragic school shooting events. Under these policies, students are suspended or expelled for specified offenses with no exceptions, regardless of the severity of the infraction, mitigating circumstances, or the context in which the offense occurred. School administrators and teachers no longer have the discretion to handle student behavior. Instead, they are often required to refer such conduct to law enforcement, which in many instances are present on school grounds, thereby criminalizing childhood behavior. With no discretion allowed to create individualized sanctions, students view the punishment as irrational, impersonal, and unjustified. Non-discretionary zero tolerance policies breed contempt for the rule of law, irreparably harm students’ notions of fairness and justice, and contribute to the creation of the same divisions between students and teachers that exist between citizens and law enforcement. While these policies are designed to address behavior without regard for individual student characteristics, that is not the case. Prior research has shown that minority students are disproportionately punished in educational institutions, and often punished more harshly than their white peers. Yet, there is no evidence that African-American and Latino students misbehave more than their white peers. Zero tolerance policies have disproportionately impacted students of color as African-American and Latino students are more likely than their white peers to be arrested in school, regardless of the demographics of the school’s enrollment. By removing students from the educational setting, especially students of color, zero tolerance policies are contributing to the disenfranchisement of the next generation of citizens. This Article conceptualizes disenfranchisement as the deprivation of a fundamental right, thereby resulting in the undermining of one’s full citizenship. Zero tolerance policies deprive students of a fundamental right, e.g. education, in the same way that felon disenfranchisement laws deprive ex-felons of a fundamental right, e.g. the right to vote. With automatic suspensions and expulsions, achievement is at risk because of missed academic time. Moreover, the risk of students not returning after suspension or attending another school following expulsion increases. Depriving students of access and interfering with the educational process, zero tolerance policies directly undermine the limited citizenship that students’ experience and jeopardize the full citizenship to which they are entitled. No longer do schools then serve as pathways to responsible full citizenship but rather they become pipelines to prison.
Keywords: zero tolerance, disenfranchisement, felon disenfranchisement, citizen, citizenship, collateral consequences, juvenile justice, pipeline, education, school, school violence, school shooting, gun free schools act, expulsion, suspension, disproportionate minority contact
JEL Classification: K14
Suggested Citation: Suggested Citation
Mitchell, S. David, Zero Tolerance Policies: Criminalizing Childhood and Disenfranchising the Next Generation of Citizens (June 24, 2014). University of Missouri School of Law Legal Studies Research Paper No. 2014-16. Available at SSRN: https://ssrn.com/abstract=2458550 or http://dx.doi.org/10.2139/ssrn.2458550