Abstract
For over half a century, legal questions over public schools’ ability to administer punishment have been meted out in the appellate court system, leading to an ever-changing definition of legal and appropriate punishments. This is where Ending Zero Tolerance: The Crisis of Absolute School Discipline begins, detailing the history of court intervention within school punishment policy and how many of these decisions unintentionally allowed for the harsh and impersonal zero-tolerance policies that many school districts have since adopted. While the general topic of legal analysis could easily have been mundane or plodding, Derek W. Black delivers a thought-provoking and appealing explanation of why so many schools have adopted zero-tolerance policies while using his expertise to offer compelling solutions through the use of judicial intervention. The author’s central argument is that zero-tolerance policies are not only harmful but based on a lack of understanding of previous case law and counterintuitive to the purpose of education and supervision that schools should provide. Secondary to this point, Black lays out his argument for court interventions that will reengage an analysis into school discipline, support broader reforms, and enforce students’ rights.
The first half of this volume dissects the history of school punishments and court intervention, leaving readers with a background knowledge of how zero-tolerance policies were conceived over time. Starting after desegregation of school districts in the 1950s and the 1960s, the use of harsh school punishments in many districts was reserved for minority students deemed “unruly” in the classroom. This was seen as a resistance to integration and was occurring simultaneously with judicial decisions that would change the scope and process of school punishment. Black elaborates by weaving in empirical evidence from social science journals displaying the adverse cumulative effects of overly severe punishments. For instance, if zero-tolerance policies lead to outcomes such as lower graduation rate, increased unruly behavior, worse socioeconomic conditions/future prospects, and lack an observable deterrent effect, these policies possess no social legitimacy and actually end up achieving the complete opposite effect. While not necessarily a judicial issue, these policies have disproportionately negative effects for minorities and poor students, leading the Fifth Circuit Court of Appeals to describe suspensions and expulsions as educational death penalties, warranting serious evaluation from all social avenues; the court system included.
In the latter half, the author articulates the rationale for judicial intervention, adding that it is not only necessary but also the most appropriate solution in ending this crisis. Throughout these last four chapters, Black maps out the legal theories that would “force a substantive evaluation of school discipline policies,” helping to make discipline rational and individualized while at the same time meeting civil rights requirements for delivering a quality and uniform education for all (p. 101). While the author engages the reader in plenty of possible avenues for accomplishing these goals, this final section centers around two basic constitutional solutions. On the federal level, Black argues that the Court has the ability and responsibility to analyze the substantive due process rationale behind zero tolerance and harsh punishments. This includes the all too often arbitrary administration of punishment, punishing of the innocent (or not affording the innocent due process before determination of guilt), and even the lack of intent and culpability. While the federal court system has been reluctant to rule on these issues, a strong argument is made that precedent currently exists leaving the door open to judicial intervention. Regarding state constitutions, Black acknowledges that most states’ highest courts have previously recognized that students have a constitutional right to education. This right creates an avenue to formulate precedent in whether or not zero-tolerance policies are in the best interest of the student. This point is supplemented by examples within social science of the plethora of negative outcomes associated with harsh punishments and expulsion from prosocial environments (i.e., the school).
One of the most appealing aspects of this book is the summaries of vivid examples of real students who experienced some of these disproportionate, arbitrary, harmful, and impersonal dispensations of “justice.” These case studies expose the constitutional quandary that exists between state interventionism and student rights and liberties. The author successfully juxtaposes this constitutional battle, while displaying the clear disadvantage that students have when it comes to civil rights or legal recourse. Although the remedy may seem clear to the reader, the chapter on judicial disengagement reinforces the fact that appellate courts have historically been reluctant to take on cases revolving around school discipline and often err on the side of vagueness or school authority. The unclear responsibility of schools operating in loco parentis while also as a governmental body further complicates judicial decision-making and adds to the reluctance of an already passive court system.
This book is a must read for any social science or law student who desires a canonical evolution of punishment policies in schools and the legal remedies available to fix these issues. While the general topic of the book may be considered bleak and discouraging by a passerby, any insightful reader will quickly realize that this volume is full of optimism and confidence in the judicial process. Black delivers multiple examples of previous court decisions that leave the door open to future changes within institutions, with school punishment policies being no different. In fact, whether on the federal, state, or local level, pockets of resistance armed with social science data and restorative ideals have begun to advocate for change within school systems nationally. Although expulsion and suspension rates have not varied significantly, awareness and an acknowledgment of the failures of zero tolerance has begun to shift the tide of public opinion. In conjunction with civil rights advocates and a general consensus by school discipline researchers, judicial intervention may finally serve as the catalyst necessary to end these arbitrary and harmful punishment policies. Black’s contribution to this end serves as a rallying cry for the aforementioned in uniting behind a push for judicial analysis into policies that have historically hurt millions of young people in the past.
