Legal Summary on Zero Tolerance

EDAS 5810: Ethics, Advocacy, & Advanced School Law

Submitted by: Terrilyn H. Ladd
2/26/2014














One of the biggest legal issues causing concerns throughout school systems
in this country today is the policy of Zero Tolerance. Essex (2009) says Zero
Tolerance policies emerged during the 1990s as a way to reduce and prevent
violence on school campuses (pp.62-63). Historically, the aim of zero tolerance
policies was to deter the serious student offenses of possession of firearms and
other weapons at school, bullying, violence, tobacco and alcohol use.
Zero tolerance policies carry the reputation that one-size-fits-all and that
there is no room for flexibility for behavioral infraction in public schools. Essex
(2009) talks about the Fourteenth Amendment considerations of fairness that need
to be made by schools that apply zero tolerance policies (p. 62). The bottom line is
that there really is no fairness in not considering the seriousness (or lack thereof) of
offenses. For example, bringing Tylenol to school carries the same punishment
under a zero tolerance policy versus being in possession of an illegal substance (p.
63).
The concept of zero tolerance is particularly concerning when it involves
students with disabilities. If students with disabilities are suspended or expelled
from school for a zero tolerance offense, those students are missing their special
education services. That could be considered as a denial of students free and
appropriate public education (FAPE) guaranteed by the Individuals with
Disabilities Act (IDEA). This is a major problem for students with disabilities,


especially if the offense is a manifestation of the students disability. Zero
tolerance policies should not be absolute and should be applied on a case-by-
case basis (p. 63).
When a student that has an IEP, exhibits a behavior that results in
suspension or expulsion, the student cannot be without IEP services for more than
10 school days. If the student is without services for more than 10 days, that is
considered a change of placement. There must always be an IEP meeting to
change a students educational placement. Within t 10 school days of any decision
to change a students educational placement for disciplinary reasons, a meeting
must be held to determine if the students behavior is a manifestation of the
students disability (Jacobs, 2011).
The solution to the problem with zero tolerance and students with disabilities
is not a simple one. There is a long list of things to consider if the behavior was
indeed determined to be a manifestation of the disability. That would mean the
student cannot be punished for behaviors that he/she cannot control. Additionally,
students cannot be denied FAPE and therefore, the student must be offered
services/academics if the behavior (even if it is normally a zero tolerance offense)
is determined to be a manifestation of the students behavior (Jacobs, 2011).
Jacobs (2011) also highlights how to handle a situation where a student with a
disability inflicts serious bodily harm on a teacher, what a notification of rights


means and how to appeal the decision made about placement or manifestation (p.
4). It is clear to see that relationship between zero tolerance policies and students
with disabilities can appear to be clear as mud.















Resources
Essex, N. L. (2009). The 200 most frequently asked legal questions for educators.
Thousand Oaks, CA: Corwin.
Jacobs, M. (2011). The principals guide to surviving special education. Knoxville,
TN: The Law Office of Melinda Jacobs.