Student-rights advocates say ‘zero tolerance’ can ensnare free speech

Tuesday, July 10, 2001

When Andrew LeBlanc took some of his drawings to Galvez Middle School in Ascension Parish, La., little did he know that the pad contained a sketch his older brother, Adam, had drawn two years earlier.

That drawing — a tongue-in-cheek sketch of Adam and his friends shooting each other as a huge missile hovers over a high school — earned Adam, 17, a short stay in the parish jail on charges of terrorism and his 12-year-old brother a three-day suspension from school.

Mary LeBlanc, the boys’ mother, says her sons are victims of zero-tolerance policies gone awry, where seemingly innocuous speech and innocent expression gets punished as harshly as actual violent acts or drug or weapons possession. Zero-tolerance policies mandate uniform punishment for violence or drug-related incidents regardless of the circumstances or the disciplinary records of the students involved.

The LeBlancs aren’t alone as families across the nation have begun challenging school districts over zero-tolerance policies. Recent incidents where free speech came into play include:

  • Prosecutors in Irvington, N.J., charged two 8-year-old boys with making “terroristic threats” after they made paper guns and pointed them at their classmates. A judge later dismissed the case, but allowed the incident to remain in their records until they are 18.
  • Administrators at Cumberland County High School in Crossville, Tenn., attempted to bar a student from graduation exercises after the boy allegedly posted threats about disrupting graduation exercises on an online message board. The boy said the message was clearly a joke and secured a court order allowing him to attend.
  • School officials at Argyle Middle School in Silver Spring, Md., first suspended a student for writing profanity about a teacher in a school yearbook, and then prevented the student from participating in an eight-grade graduation.

Student-rights advocates abhor zero-tolerance polices, claiming such policies don’t allow school officials to evaluate circumstances, free-speech implications or students’ records.

But many school officials and prosecutors defend such policies, saying they have helped curb violence in the nation’s schools. And they say the policies enable school officials to put a halt to real threats.

“You never know when someone is going to be serious and carry it out,” Keith Harvest, a prosecutor who handled the case of the paper gun, told The Washington Post.

Julie Lewis, staff attorney for the National School Boards Association, said the zero-tolerance policies developed in the 1990s as school officials tried to adhere to federal laws designed to bar firearms from school buildings.

In 1990, Congress passed the Gun-Free School Zones Act, prohibiting the possession or discharge of a firearm in a school zone. But in the 1995 case of U.S. v. Lopez, the U.S. Supreme Court invalidated the law saying that Congress had exceeded its power by treading on a responsibility of state and local officials and that guns in schools didn’t involve interstate commerce.

Congress crafted a response even as Lopez made its way through the court system. In 1994, it passed the Gun-Free Schools Act, which required public schools, in order to receive money from the federal government, to enact a policy mandating a one-year expulsion for students who bring firearms to school.

Following the passage of that law, school systems rapidly adopted zero-tolerance policies. By 1999, according to a National Center for Education Statistics “Indicators of School Crime and Safety” report issued that same year, 94% of the nation’s schools had adopted such policies in regards to firearm possession and almost as many included other weapons and drugs as well. Meanwhile, the center reports that incidents of violence in schools have decreased significantly over the past decade.

But some free-speech experts say such policies often take the decision-making abilities out of the hands of school administrators and impose a “one-size-fits-all” disciplinary standard.

“What zero-tolerance policies do is say that a student making an actual physical threat of violence is equal to an elementary student running around with his finger out pretending it’s a gun,” said Gary Daniels, a spokesman for the National Coalition Against Censorship. “It takes away all discretion from the teacher and other school administrators to deal with a situation in a logical manner.”

And in the wake of the April 1999 shooting in Littleton, Colo., where two teen-agers killed classmates and a teacher at Columbine High School before turning their guns on themselves, claims of improper discipline have skyrocketed.

Daniels, formerly of the Ohio Civil Liberties Union, said he remembered logging some 75 complaints within six weeks following the Columbine massacre. One incident that stuck in Daniel’s mind is that of a boy suspended for writing, “You will die with honor” for a fortune-cookie project, borrowing a phrase he learned from a martial-arts video game.

“Reports of other incidents started to drop off a bit after that but probably only because” school was letting out for the summer, Daniels said in a telephone interview. “But we already saw that the ballgame had changed.”

Even before Columbine and the Gun-Free Schools Act, the U.S. Supreme Court had determined in its landmark case of Hazelwood School District v. Kuhlmeier in 1988 that students had limited First Amendment rights. The court said school officials could regulate school-sponsored publications provided they show a legitimate educational purpose in doing so.

Despite Hazelwood, students retain some First Amendment rights, says Mike Hiestand, an attorney with the Student Press Law Center.

“It has to change,” Hiestand said in a telephone interview. “The stories coming out on the wire are just so far out of bounds from what we think is just and fair.”

The American Bar Association agrees, approving a resolution last February to oppose zero-tolerance policies that “fail to take into account the circumstances or nature of an accused student’s history.”

School organizations such as the National School Boards Association contend that such policies have been successful in curbing violence in public schools. In the past, the NSBA defended zero-tolerance polices saying that “a clear and consistent message that threats of violence will not be tolerated may help to reduce the actual occurrence of violence.”

But Lewis said the public, journalists and even the education community have so misused and misunderstood the phrase “zero tolerance” that the NSBA has crafted new guidelines on disciplinary measures involving violence.

“‘Zero tolerance’ has become such a buzz phrase that it resonates with people,” she said in a telephone interview.

In new guidelines to be published this summer, the NSBA suggests that school boards carefully craft policies so that they don’t unintentionally include behavior that they don’t want to cover.

“Schools must make certain that the punishment is not ‘shocking to the conscience’,” according to the guidelines. “The state’s interest in disciplinary situations is to maintain order in the school or to protect students. Therefore, a school district must show that its rules are reasonably related to these purposes.”

Chuck Piechota, operator of the Zero Tolerance Nightmares Web site, says he’s finding that more and more school districts seem to have enacted unreasonable policies intended to curb violence and drug use. He launched the site in 1998 after his son was expelled from a Colorado high school for drinking alcohol on a band trip.

Last month, the site got more than 16,000 hits.

“That is scary when you think of it as a pretty esoteric subject and those hitting the site are probably only a small fraction of the population affected by this subject,” Piechota said. “It is getting increasingly difficult to respond personally to all the e-mails I get requesting help and advice. I also now have many more people wanting their stories published on the site than I can accommodate.”

One of the cases he has featured on the site is the one involving the LeBlanc brothers.

For the brothers, the disciplinary actions came last March after a bus driver saw Adam’s drawing in the sketchpad and gave it to school officials at Galvez Middle School where his brother Andrew attended.

The principal gave Andrew a three-day suspension and forwarded the sketchpad to the high school. There, administrators searched Adam’s locker, desk, his car and his book bag, finding a box cutter Adam used for his grocery store job, a lighter, a cover from a pack of rolling papers and a bandana.

The school officials called police and prosecutors who charged Adam with terrorism and possession of a weapon. Bond was posted at $15,000. The 17-year-old spent nearly four days in jail.

Despite the legal help of the Rutherford Institute, Adam still faces charges in connection with the drawing.

Mary LeBlanc remembers being proud of Andrew’s drawing of a camel that March morning and even laughing two years earlier at his brother’s sketch, the one that got both of them into so much trouble.

And she now wonders: “If he had only torn it out of the book … .”

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