Zero Tolerance Policy Rooted in Zero Smarts

By William Boardman, Reader Supported News

14 December 13

The precipitating event, an imaginary shootout, lasted only moments

he fifth grade boy needed a pencil and, with his teacher's permission, he went to the front of the classroom to get one. As he returned to his seat, his friend, another ten-year-old boy, pointed a folder at him and pretended to shoot him, as if the folder were a gun. The boy with the pencil responded by pantomiming as if he were shooting back with an imaginary bow and arrow. Then he sat down.

That's the entire episode that occurred in rural Pennsylvania during the week of October 14. But this behavior was enough to get each boy a one-day, in-school suspension, and a black mark on his permanent record, because the school has a "zero tolerance" policy on "weapons." Both boys have since served their suspensions in the office of the principal at the South Eastern Middle School-West in Fawn Grove (pop. 452, down from 463 in 2000). The school serves a district along the Maryland border with a population of almost 20,000 people (up from about 18,000 in 2000).

The motto of the South Eastern School District is "Providing Progressive Education to Strengthen the Global Community." The district has 243 fifth graders and 217 sixth graders, 96 of whom qualify for lunch subsidies due to family poverty. The district has a median family income of almost $56,000, more than $6,000 higher than the national median family income. Principals in the district are paid in the $85,000-$100,000 range, and district superintendent Rona Kaufmann was paid $135,000 in 2012. Presumably these professional educators thought the fifth grade imaginary shootout episode was closed once the suspensions had been served and noted in the record.

This "progressive education" didn't strengthen the local community

Ordinarily, that probably would have been the end of it. But the parents of Johnny Jones (his real name), the boy who needed the pencil, objected. They didn't find the process or the decision or the stain on their son's record fair. They worried that a "weapons" offense on his permanent record could cause him endless future harm. When the school refused to respond to their appeal, they turned to attorney John Whitehead, whose Rutherford Institute in Charlottesville, Virginia, bills itself as "dedicated to the defense of civil liberties and human rights" and provides pro bono legal services to people like the Joneses.

Johnny Jones's experience with school justice was unknown to most people until the Rutherford Institute made details of the case public on December 4 with a press release and a letter the same day to district superintendent Rona Kaufmann, asking her to rescind the suspension and to expunge any record of it from Johnny Jones's files. To date no school officials have made any public statement on the case, nor has the Jones family. The other boy's family has not objected on behalf of their son. On December 13, John Whitehead said that he and lawyers for the school district were talking but he didn't expect a settlement before January, if then.

So how does in-class horseplay get to the verge of going to court?

After the phantom "shootout," according to the letter from Rutherford Institute senior staff attorney Douglas McKusick: "The two children laughed. Seeing this, another girl in the class reported to the teacher that the boys were shooting at each other." If an as yet unidentified ten-year-old girl was needed to make the as yet unidentified teacher aware of the event, then any class disruption by the "shootout" was apparently minimal to nonexistent.

As for the teacher, her response was not minimal: "The teacher took both Johnny and the other boy into the hall and lectured them about disruption," the letter said, although there's no specific disruption cited. Later, the teacher sent an email to Johnny's mother, Beverly Jones, "alerting her to the seriousness of the violation because the children were using 'firearms' in their horseplay, noting that Johnny was issued a referral to the Principal."

In due course, Principal Jon Horton called Johnny's mother "and asserted that Johnny's behavior was a serious offense that could result in expulsion, although Mr. Horton offered to 'merely' require that Johnny serve a one day in-office suspension," McKusick's letter stated. During this same period, the principal also met with the teacher and the two ten-year-olds to sort out the event.

As John Whitehead described it, having spoken to the Joneses, this meeting was more like a kangaroo court than any kind of neutral evidentiary hearing as part of normal due process. The principal was present as judge, jury, and prosecutor. The teacher was there as a fact witness, even though she had not witnessed the event and could provide only hearsay testimony. But worse, in Whitehead's view, was the power imbalance of two adults facing off against two ten-year-olds, who had no adult present to stand up for them.

For an innocent kid, intimidating adult accusations can be traumatic

After more than twenty years of fighting zero tolerance school cases, Whitehead now says the one-sided face-off of adults against kids can be devastating to the kids, especially when they have no understanding of what they've done wrong and can't make sense of the adult anger and judgment raining down on them in an over-matched confrontation. Whitehead says he has seen kids who were severely damaged by the process, some needing years to recover. So far, he sees Johnny Jones as coping well, being a good student with a good record, and having a very supportive and outspoken mother on his side. But his mother told a reporter that the boy was "walking on eggshells," focused on not getting in trouble more than on learning.

When Principal Horton played the magnanimous punisher - "merely" a suspension - with Beverly Jones, she wasn't grateful. She wanted to know just what policy the boys had violated with their imaginary shootout. "Horton replied that Johnny had 'made a threat' to another student using 'a replica or representation of a firearm,' through his use of an imaginary bow and arrow," said McKusick's letter.

Beverly Jones wanted to know how her son could violate a weapons policy when he had no weapon, and when no one had even accused him of having a weapon.

Apparently "having a weapon" is in the eye of the beholder

South Eastern School District policy 218.1 defines "weapon" this way: "the term shall include but not be limited to any knife, cutting instrument, cutting tool, nunchaku, firearm, hotgun, rifle, replica of a weapon, and any other tool, instrument or implement capable of inflicting serious bodily injury." [Another official document titled South Eastern School District Student Code of Conduct on the middle school website conveys almost identical information: "the term 'weapon' shall be identical to the provisions of Section 1317.2 of the Public School Code which reads: 'The term "weapon" shall include, but not be limited to, any knife, cutting instrument, cutting tool, nunchaku, firearm, shotgun, rifle and any other tool, instrument or implement capable of inflicting serious bodily injury.' Replica weapons and 'look-alike' weapons are also prohibited."]

Clearly this definition (and the rest of the three-page policy) has in mind a thing, a physical object, something that can inflict actual harm. Any other interpretation seems to suggest the need for some remedial reading lessons. Even with the most expansive reading, it's hard to see how an invisible bow and arrow could be a "representation of a firearm" or a look-alike weapon, as the principal reportedly claimed. Given the policy definition of a weapon and the current facts of the episode, the closest thing to a real weapon involved may have been a sharpened pencil, an implement that has done plenty of serious bodily injury over the years.

The same school policy states: "Any student who brings a replica of a weapon or hazardous materials onto school property shall be subject to disciplinary action that shall be reviewed by the Superintendent and may include expulsion." The principal may have acted in violation of school policy by taking disciplinary action without review by the superintendant, given the principal's determination of the presence of a weapon (regardless of whether that determination was fanciful).

The policy further states: "The Superintendent or designee shall immediately report the discovery of any weapon prohibited by this policy to local law enforcement officials and inform the student's parent/guardian." Since the police were not involved, the school also appears to have violated this policy, although a defense might be that notice of imaginary weapons is properly in the jurisdiction of imaginary police.

Imaginary weapons lead to imaginary consistency

For a period of time, Beverly Jones challenged the principal to make a rational review of the case, but to no avail. As Nikelle Snader of the York Dispatch reported, "Despite her protests, Jones recalls Principal Jon Horton saying the punishment needed to stay consistent with other violations of the zero-tolerance policy and that the policy determined the threat with a weapon would go into John's permanent school record. Jones said it was then she decided to contact the Rutherford Institute, which she had heard about in the past."

The consistency in this middle school apparently is that weapons are treated as weapons, no matter whether they're real or imaginary. It's hard to see how the conflation of the real and the imaginary qualifies as "Progressive Education to Strengthen the Global Community," or any other kind of education to strengthen any other kind of community. In fact, the inability to distinguish between the real and the imaginary is one measure of mental health, and is sometimes labeled hallucinatory perception.

Even it weren't plagued with evidentiary difficulties, this application of draconian educational discipline raises questions of all sorts of rights and abuses of rights. The middle school's handbook declares that students have rights, and sets them in this context:

"Every right that students have is attached to an obligation. Student rights must be balanced against the rights of others. The purpose of school and the requirements of the educational process must be weighed in deciding who has a right to do what and what behavior is deemed inappropriate. Students must give their names, when requested, to any teacher, administrator or staff member."

Where does one go to get one's rights un-violated?

The handbook goes on to list ten, sometimes oddly-expressed rights, two of which are plainly at issue here. The "Right to Fair Discipline" cannot survive in a rational system if punishment is based on imaginary behavior.

That "Students have the: … Rights Under the Fifth Amendment," while awkwardly expressed, is even more problematical for a school system that wants to behave constitutionally. Since the Fifth Amendment concerns criminal prosecution, presumably the school board adopted its protections more metaphorically that literally. But whatever the intent, the process used on Johnny Jones was not only bereft of anything akin to "due process of law" but it also coercively put him in the position of being a witness against himself.

In school district policy 218, "Student Discipline," the school board promises to "establish fair, reasonable and nondiscriminatory rules and regulations regarding the conduct of all students in the school district…." Should the board consider reviewing its weapons policy for fairness and reasonableness, it could do worse than consult its own online curriculum tool, "The Miniature Guide to Critical Thinking Concepts and Tools," which warns that: "Shoddy thinking is costly, both in money and quality of life."

Conflating imaginary weapons with real weapons is shoddy thinking that, in this case, has already exacted an unjust toll on the quality of at least two lives, and may yet exact a significant toll in money.

A cure for the official stupidity of the professional educator?

The critical thinking guide is "designed for administrator, faculty and students" and goes on to explain that: "Its generic skills apply to all subjects. For example, critical thinkers are clear as to the purpose at hand and the question at issue. They question information, conclusions, and points of view. They strive to be clear, accurate, precise, and relevant. They seek to think beneath the surface, to be logical, and fair. They apply these skills to their reading and writing as well as to their speaking and listening. They apply them in history, science, math, philosophy, and the arts; in professional and personal life."

In the case at hand, the phantom shootout at Fawn Grove, there were few critical thinkers. On the available evidence, Beverly Jones seems to have thought critically about it from the start. The two boys weren't thinking critically in their pantomime, but how relevant is that? It might have helped if the tattletale had paused to think critically before she acted. The absence of critical thought on the part of the teacher and the principal not only created a mess, but were indications of professional failure.

Whether the superintendent has the capacity to apply critical thought to this particular absurdity or to the general idiocy of policies of zero tolerance remains to be seen (policy reform is supported by the National Association of School Psychologists as well as the American Bar Association, among other groups). But the board's own shoddy thinking in creating such policies has led to this failure, and to the possibly costly presence of attorneys thinking critically on both sides.

And who knows, if enough educators start thinking critically and with integrity, the lemming-like fad of zero tolerance might be mitigated into policies that are reasonable, responsible, and reality-based. It's at least worth a shot with a metaphorical imaginary bow and arrow.

William M. Boardman has over 40 years experience in theatre, radio, TV, print journalism, and non-fiction, including 20 years in the Vermont judiciary. He has received honors from Writers Guild of America, Corporation for Public Broadcasting, Vermont Life magazine, and an Emmy Award nomination from the Academy of Television Arts and Sciences.

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.